EB-3 Permanent Workers
EB-3 is an employment-based immigrant classification for professionals, skilled workers, and other unskilled workers. A foreign national can obtain green card status if he or she has a permanent full-time job offer from U.S. employer. Prior to petitioning for the alien beneficiary, the U.S. employer must first obtain an approved labor certification application.
To establish eligibility under the EB-3 immigrant classification, the following requirements must be met:
- The U.S. employer must provide the alien beneficiary with a permanent full-time offer of employment.
- The U.S. employer must obtain an approved labor certification application for the position offered to the alien beneficiary.
- The alien beneficiary must be qualified for the position.
- The U.S. employer must be able to demonstrate the ability to pay the alien beneficiary for his or her employment in this position.
Labor Certification Application
The labor certification application is a process of making sure that no U.S. worker is willing, able, and qualified for the position offered to the alien beneficiary. This process is aimed at protecting the interest of U.S. workers and involves testing the domestic labor market through a series of recruitment activities. The labor certification application is administered through the “Program Electronic Review Management” system, more commonly known as PERM.
To begin the labor certification application process, the U.S. employer would first obtain a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC). The PWD provides the employer the minimum compensation required for the position offered. The purpose of the PWD is to deter employment of foreign nationals at less than competitive wages offered by similar employers in the area. In other words, the U.S. employer must be willing to pay at least the prevailing wage for the type of position offered to the alien beneficiary.
Next, the U.S. employer must begin a series of recruitment steps to test the labor market for available U.S. workers. The exact steps required depends on whether the position is professional or nonprofessional. At a minimum, the U.S. employer undertake the following recruitment efforts:
- 30-day job order with the State Workforce Agency serving the area of intended employment;
- Two Sunday print advertisements in a newspaper of general circulation; and
- A Notice of Filing to be posted at the proposed job site for a period of 10 business days.
For professional occupations, the U.S. employer must select and implement three additional recruitment steps from a list of 10 options provided by the Department of Labor:
- Job fairs;
- Employer’s website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firm;
- Employee referral programs;
- Campus placement offices;
- Local or ethnic newspapers; and
- Radio or television advertisements.
During the recruitment process, the U.S. employer must review applications received from prospective candidates. The employer must contact prospective candidates that meet the requirements of the position for further evaluations of their credentials. Upon determining that no U.S. workers are qualified and willing to assume the position offered, the labor certification application can be submitted for approval.
Qualifications of the Alien Beneficiary
The EB-3 immigrant classification is available to foreign nationals working for U.S. employers in professional, skilled, and unskilled capacities.
- Professional positions require at least a U.S. baccalaureate degree or foreign equivalent in a particular field or concentration. For these positions, the alien beneficiary should have the academic credentials that meet the requirement.
- Skilled positions require at least two years of training or experience to perform. Alien beneficiaries qualifying as skilled workers should be able to provide documentation of past experience and training relevant for the position.
- Unskilled positions are those that require less than two years of experience or training to perform.
Ability to Pay
The U.S. employer must also demonstrate its ability to pay the wage offered. This involves providing evidence of the employer’s financial capacity from the date the labor certification application was filed (priority date). The employer can establish its ability to pay through financial documents (such as IRS filings) showing its net income or net current assets exceed the wage required for the position. The employer can also show that the alien beneficiary is already employed and is being paid a wage equal to or higher than the wage required.
Dependent Family Members
Spouse and minor children can be granted immigrant status as dependents. Special attention to the petition process is required if there are children approaching 21 years old.
An immigrant petition with documentary evidence establishing eligibility must be submitted to U.S. Citizenship and Immigration Services. Those already in the United States under lawful status may apply for an adjustment of status upon the approval of the petition and the priority date becoming current. If the alien is overseas, he or she must obtain an immigrant visa at a U.S. embassy or consulate.