Employment Based Green Card for Professionals & Skilled Workers – EB3 Visa
One of the most common ways to obtain a Green Card is through a job offer from a U.S.-based employer. Employment-based Green Cards are divided into five preference categories. The third preference (EB-3) category is designed for foreign skilled workers, for foreign professionals, and for all other foreign workers (or unskilled workers). At Colombo & Hurd we have decades of experience assisting employers obtain green cards for their skilled workers and professionals through the EB-3 Visa process. Please find below an explanation of the definition of the eligible categories of employees along with a brief description of the EB-3 Visa Process.
SKILLED WORKERS vs. PROFESSIONALS vs. OTHER WORKERS
The law defines “skilled workers” as those whose jobs are not temporary or seasonal and require a minimum of 2 years of training or work experience. In certain cases, relevant post-secondary education may be considered as training.
On the other hand, “professionals” are those foreign nationals holding a U.S. baccalaureate degree (or a foreign degree equivalent to a U.S. baccalaureate degree) related to the job position, and for which position the degree is normally required. The degree must be in the form of an official college or university record. Notably, combinations of degrees less than a baccalaureate degree and/or experience may not be used in lieu of a baccalaureate degree.
Finally, “other workers” (often referred to as “unskilled workers”) are those foreign nationals performing unskilled labor not of temporary or seasonal nature and requiring less than 2 years of training or experience.
THE EB-3 GREEN CARD SPONSORSHIP APPLICATION PROCESS
The application process for an EB-3 Green Card requires sponsorship from a U.S. employer. As such, the foreign worker needs a permanent, full-time offer for a job position for which qualified workers are not available in the United States. The EB-3 application process involves three major steps:
- The PERM Labor Certification process,
- The I-140 Immigrant Petition for Alien Worker, and
- The application for adjustment of status or, alternatively, the application for an immigrant visa at a U.S. consulate abroad.
Step 1: the PERM Labor Certification process
The first step to obtain an EB-3 Green Card is the PERM/Labor Certification process with the U.S. Department of Labor (DOL). This stage entails multiple steps itself. First, the U.S. employer must define the duties and minimum requirements of the permanent position offered to the foreign national. Then, the employer must submit a “prevailing wage determination” (PWD) request to the DOL. The DOL will then issue a determination as to the minimum wage that the sponsoring employer must pay the foreign national. The PWD is based on the specific job requirements and on the location of employment. Furthermore, the DOL, by regulation, requires an employer to test the U.S. labor market by advertising the position offered to the foreign national so to make it available to U.S. workers. This step is often referred to as the “recruitment stage” and the employer must perform specific steps in its advertisement efforts. The purpose of this stage is for the employer to determine that no qualified and willing U.S. workers were found for the position offered to the foreign national. At this stage, timing is crucial, as the PERM process does not consider ads older than 180 days. After the last recruitment effort ends there is a 30-day waiting period required before the employer can continue the process. This is so that the employer can continue to receive and consider applications for the advertised position. After the 30-day waiting period, the employer can move on to the next and final step of the PERM process, which is the filing of Form 9089 with the DOL. Form 9089 provides the DOL with information on the position offered (such as the worksite location, duties, requirements, prevailing wage and so on), on the employer’s recruitment process and on the foreign worker. It may take the DOL several months to adjudicate the PERM application. The DOL can (1) certify the PERM, (2) deny the PERM, or (3) audit the PERM. If the PERM is audited, the DOL may ask the employer for additional evidence. Once the PERM is approved, the employer can move on to the next step of the process, which is the filing of the I-140 petition with U.S. Citizenship and Immigration Services (USCIS).
Step 2: the I-140 Immigrant Petition
After the PERM/Labor Certification Application has been certified by the DOL, the second step in an EB-3 Green Card application is for the employer to file the I-140 Immigrant Petition with USCIS along with the certified PERM/Labor Certification Application. The purpose of the I-140 Petition is to prove that the foreign national is qualified to fill the job position as well as to prove that the employer has the financial ability to pay the proffered wage to the foreign national. USCIS can take several months to adjudicate the I-140 Petition. However, upon payment of an additional fee, USCIS can adjudicate the Petition via “premium processing” within 15 calendar days. USCIS can (1) approve the Petition, (2) deny the Petition, or (3) request additional evidence, in which case the petitioning employer will be requested to provide additional evidence to support the eligibility for the EB-3 green card. Notably, the filing or approval of the PERM/Labor Certification Application or of the I-140 Petition do not authorize the foreign national to live and work in the U.S. Rather, he or she must await until the I-140 Petition is approved and a visa number is available, and then move on to the next and final step.
Step 3: the green card application through adjustment of status or consular processing
The final step in the green card process through employer sponsorship happens after the I-140 Petition is approved by USCIS. At this stage, the foreign professional can follow two different procedures. If the professional is already in the United States in valid status and an immigrant visa is available, he or she can obtain the EB-3 green card by filing an adjustment of status application. Alternatively, if the foreign professional is not in the United States, he or she can apply for an EB-3 immigrant visa at a U.S. consulate abroad once a visa is available.
