Employment-Based Third Preference Category (EB-3)
The Employment-based third preference category requires a preliminary Labor Certification to be issued by the US Department of Labor before an employer may file a petition on behalf of a foreign national worker. See below for a discussion about Labor Certification.
There are three kinds of EB-3 Workers:
EB-3(A): This category is for 'professional workers' with a U.S. bachelor's or foreign equivalent degree and with a job offer from a U.S. company
EB-3(B): This category is for 'skilled workers' for positions that require at least two years of training or experience and with a job offer from a U.S. company
EB-3(C): This category is for 'unskilled workers' for positions that require less than two years training or experience and with a job offer from a U.S. company
Professionals must hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.
Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education. The Labor Certification Form states the job requirements, which determine whether a job is skilled or unskilled.
Other workers are in positions that require less than two years of higher education, training, or experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States. However, due to the long backlog, a petitioner could expect to wait many years before being granted a visa under this category.
PERM Labor Certification
For foreign workers seeking permanent residency in the United States in the EB-3 category, the Labor Certification process is necessary. Labor certification essentially involves proving to the United States Department of Labor that there are no qualified U.S. applicants to fill the position for which the foreign worker is applying.
Obtaining a permanent labor certification for a foreign worker to work permanently in the U.S. is a multi-step process. The employer must complete detailed applications and petitions and show that it has been unable to fulfill its needs with able, willing, and qualified workers after recruiting from the American workforce. The employer must obtain approval and certification not only from the Employment and Training Administration at the U.S. Department of Labor, but also from USCIS through an I-140 petition.
Although it can be lengthy and complex process, the end result is permanent residence and a green card for the worker, and a quality workforce for the employer. We are there every step of the way to facilitate the process.
It now works in the following way:
- The company determines the need for the foreign worker.
- Under PERM, employers will be required to obtain a Prevailing Wage Determination from the appropriate State Workforce Agency and to conduct recruitment before filing a labor certification application. Recruitment will require placement of a job order with the SWA, 2 advertisements on Sunday (with limited exception), specified posting and for all professional jobs recruitment will be required to include at least three (3) additional steps from a designated list of additional types of recruitment.
- After advertising the position and receiving resumes from interested U.S. candidates, the employer conducts the necessary interviews.
- If the advertising does not yield a qualified American candidate, the employer responds to the Labor Department and requests a final approval of the labor certification.Employers will have the option of filing applications electronically, using web-based forms and instructions, or by mail. The new application Form 9089 requires completion of information about the job offer and requirements as well as many attestations concerning the recruitment and other issues bearing on processing. No additional documents are submitted at the time of application but the Certifying Officer may request any or all of the documents required to support the attestations under a procedure designated as an audit.
- The U.S. Department of Labor has indicated it will either audit the case or approve or deny it within 60 days of submittal.
- After the labor certification is approved, the immigrant visa petition is submitted by employer and if a visa number is available it can be filed concurrently with:
- The principal worker and his/her spouse and minor children under the age of 21 apply for and obtain permanent residency in the United States.
- The date the labor certification application is filed is known as the filing date and is used by USCIS and the Department of State as the priority date. You may access the State Department Visa Bulletin to learn which priority dates are currently being processed. When priority date is reached an application for permanent residency and employment authorization may be requested.