EB3 VISA

Employment based 3 | Immigration Lawyer

EB3 Visa Category

An EB3 visa is an employment-based, category of visa issued to foreign national employees to work in the United States.  These employees enter the United States with a green card as skilled or professional workers. They fill jobs when an American employee is unavailable.

The EB3 visa category allows U.S. employers to hire a foreign national through green card sponsorship when American workers are unavailable.  The Department of Labor (DOL) requires the employer to test the labor market before submitting a petition with USCIS.  This process is commonly known as “PERM process” or Labor Certification.  Once the employer goes through the PERM process, the DOL issues a Labor Certification. A labor certification means that the employer tried to recruit an American, but was unable to find a willing and available worker. The employer can then petition the foreign employee for a green card.  The employee and their family will obtain the green card (permanent residence in U.S.). The green card allows the employee to have work authorization and social security number. The green card expires in ten years and can be renewed indefinitely. Therefore, the employer will have a permanent worker indefinitely.

This process takes some time to complete. However, it is an option for employers that have difficulty finding candidates to fill positions or are unable to find qualified employees for their business.

THE PERM PROCESS

The Prevailing Wage Determination

The PERM process begins with the employer asking the Department of Labor (DOL) for a Prevailing Wage Determination (PWD). The PWD determines the minimum salary the employer must pay the employee according to the job requirements and job description.

The PWD lists the job title and job description that the employer is trying to fill.  The employer also lists the minimum education, experience, skills, and other requirements for the job.  For example, the employer may require minimum education and minimum experience.  The employer might require that the employee relocate or travel.  The DOL considers all theses factors into consideration when determining the prevailing wage.  The prevailing wage determination takes approximately 4-6 months.

Recruitment under the Perm Process

After the employer receives the prevailing wage determination, the employer must undergo a period of recruitment.  This requires the employer to test the job market to find a qualified, willing, and able U.S. employee for the job.  The employer must undergo a series of recruitment steps defined by statute.  The employer must provide a lawful job-related reason for not hiring qualified applicants.  The recruitment period for the PERM process takes approximately 60 days to complete.

PERM APPLICATION

After the recruitment, the employer submits a Form 9089 (PERM application) to the DOL.  This form asks DOL to certify that there are no qualified, willing, and able employees for the job and that the employer can proceed with the petition with USCIS.  The PERM application can take anywhere from 4-6 months to be decided.  The entire PERM process can take between 9-12 months.

I Am an Employer and Would Like to Hire a Foreign National. Who Can I Hire?

The EB3 category of visas is available for:

  • Skilled workers,
  • Professionals, or
  • Unskilled or Other workers

“Skilled workers” are persons whose job requires a minimum of 2 years of training or work experience and is not of a temporary or seasonal nature.   You must be able to demonstrate at least 2 years of job experience or training.  You must be performing work for which qualified workers are not available in the United States.

“Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are members of the professions. These are, among others, architects, engineers, lawyers, doctors, surgeons, elementary or secondary teachers, university, academics, or seminarians. You must be able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent and that a baccalaureate degree is a standard required for entry into the occupation. You must be performing work for which qualified workers are not available in the United States. Education and experience may not be substituted for a baccalaureate degree.

“Unskilled” or other workers must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

The employer must undergo the PERM process and obtain the Labor Certification explained above.  The employee must also have a permanent offer for employment to qualify for the EB3 green card.  A Labor Certification is a way to verify that the admission of a foreign employee to the U.S. will not harm job opportunities available to U.S. workers.

What are the PERM Requirements for the Employer?

For the PERM, the employer must be registered as a business entity in a state.  The employer must also have a Federal Employer Identification Number and applicable business licenses.

The employer must also pay for the attorney’s fees of the PERM process.  There cannot be a promise of repayment from the employee.  The employer must comply with all regulatory requirements during the recruitment process.  There are no government fees to obtain a PWD or to apply for a PERM.

How does an Employer Sponsor a Foreign National for a Green card?

After the employer obtains a Labor Certification with the DOL, the employer submits Form I-140, all the supporting documentation and the applicable fees to USCIS.  The employer must prove that they can pay for the employer’s salary by submitting tax returns.  The employee must also submit evidence proving that they qualify for the position.

If the employee is in the United States, the employee can also apply for Adjustment of Status.  This gives the employee an EB3 green card in the United States.  If the employee is abroad, the employee will go through consular process. For more information on consular process click here. The consular process gives the employee an EB3 visa from abroad.

How Terra Immigration Helps

The immigration attorneys at Terra Immigration assist employers to legally hire talented foreign employees.  The PERM process is complicated, but our attorneys are diligent and experienced in the process.  We work closely with the employer throughout all stages of the process.  Our lawyers also help employees obtain an EB3 green card.

Let’s talk about your immigration case. Contact us and speak to an immigration lawyer.

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