EB-3 THIRD PREFERENCE

The Second and Third Preference Employment Based Immigrant petitions are for professionals across all functions.

WHAT IS IT?

The Second and Third Preference Employment Based Immigrant petitions are for professionals across all functions. The difference between Second and Third Preference categories (EB-2 or EB-3) is mainly due to the educational requirements necessary to perform these jobs. In the case of an EB-3 (Third Preference), the job you apply for can fall under one of three categories, requiring different education and experience:

Where:

  • Skilled workers” are persons whose jobs require a minimum of 2 years training or experience, not of a temporary or seasonal nature. The skilled worker must meet the educational, training, or experience requirements of the job opportunity. Relevant post-secondary education may be considered as training.
  • Professionals” are persons whose job requires at least a U.S. baccalaureate or foreign equivalent degree and are a member of the professions.
  • The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training, education, or experience, not of a temporary or seasonal nature.
LIFE CYCLE OF EB-3 THIRD PREFERENCE

The life cycle of the employment-based green card process can be complicated, labor-intensive, and time consuming with extensive regulatory requirements that must be followed explicitly.  By understanding the process through a legal expert, the employer and employee can be confident in the tasks that require their involvement and that the process will run smoothly.

 Bay Immigration Law’s mission is to serve as its clients’ attentive legal expert during the navigation of this process.  We take great strides to ensure the process flows smoothly for all involved stakeholders. 

The employment-based permanent resident process is generally comprised of three phases:
  1. ETA-9089, PERM Labor Certification
  2. I-140, Immigrant Petition for Alien Worker
  3. I-485, Application to Register Permanent Residence or Adjust Status, or Immigrant       Visa Processing through a U.S. Consulate abroad.

1. ETA-9089, PERM Labor Certification

The PERM Labor Certification process is employer driven and must be sponsored by a U.S. employer actively doing business in the U.S.  There are four significant steps in the PERM Labor Certification process that must be completed before the ETA 9089, Application for Permanent Employment Certification may be submitted to the DOL for processing.

1.1. Establishing duties and requirements for the position that forms the basis for the PERM case and determining the correct employment-based preference category (i.e. EB-2 and EB-3). 

The sponsoring employer must set forth clearly defined job duties and educational and/or experience requirements needed to qualify for the position.  Please find below a brief description of employment-based preference categories EB-2 “Advanced Degree” category and EB-3 Professionals, Skilled Workers, and Others categories.

  • EB-3: Professionals: The applicant must demonstrate that he or she possess a U.S. baccalaureate or foreign equivalent degree, and that a baccalaureate degree is the normal requirement for entry into the occupation; he or she must be performing work for which qualified U.S. workers are not available in the United States; education and experience may not be substituted for a baccalaureate degree; and he or she must meet any other requirements specified on the ETA 9089 Application for Permanent Employment Certification.
  • EB-3: Skilled Workers: The applicant must be able to demonstrate the following: that he or she possess at least 2 years of job experience, education, or training that meets the job requirements specified on the labor certification; relevant post-secondary education may be considered as training; and he or she must be performing work for which qualified workers are not available in the United States; and he or she must meet any other requirements specified on the ETA 9089 Application for Permanent Employment Certification.
  • EB-3 Other Workers:  The applicant must demonstrate the ability to perform unskilled labor (requiring less than 2 years of training or experience), that is not of a temporary or seasonal nature; applicant must be performing work for which qualified workers are not available in the United States; and he or she must meet any other requirements specified on the ETA 9089 Application for Permanent Employment Certification.

1.2. Secure a Prevailing Wage Determination from the U.S. Department of Labor (“DOL”). The prevailing wage establishes the minimum wage level required for the offered permanent position.  The prevailing wage request is submitted to the DOL terms of employment for the offered permanent position are determined (i.e. duties, requirements, worksite location). A prevailing wage determination from DOL must be obtained before filing the PERM application once recruitment has been conducted.  This application takes approximately 6 months for the DOL to process. There is no option to expedite this application.  Please note this is processing time is subject to change as DOL processing times change frequently.

1.3. Employer registration of DOL PERM Account.  The employer must register an account with the Department of Labor through its Foreign Labor Certification website.  This website is utilized by the DOL for processing the ETA 9089, Application for Permanent Employment Certification.

1.4. Conduct a test of the U.S. Labor Market.  The employer is required to participate in a process to test the U.S. labor market by recruiting to determine if there are any able, willing, available and qualified U.S. workers for the position to be offered to the foreign national.  Recruitment is just like it sounds, the employer must advertise the position and review resumes for more than 30 days, but less than 180 days (180 day count start once the first form of recruitment is posted), prior to filing the application to ensure that there are no other qualified U.S. workers available.  

The DOL has specific regulations as to the form and content of the recruitment efforts required of the sponsoring employer.  The employer is required to use newspaper ads, a posting in the state labor department’s job bank, and, for professional positions, three additional allowed forms of recruitment.  The regulations address not only the types of recruitment the employer may use mandatory and alternative forms, but also the content of the advertisements.

1.5. 30 Day “Cooling Off” Period.  The completion of the mandatory recruitment triggers a required 30 day cooling off period.  After each form of recruitment is closed, the Employer must wait at minimum 30 days before the ETA 9089, Application for Permanent Employment Certification may be submitted to the DOL.  This period is required so that the employer may continue to receive and consider job applications in response to the prior recruitment efforts.  If an application is filed prior to the 30 “Cooling Off” period, the application will be denied. 

There is an exception when completing the alternative forms of recruitment for a professional position, that one alternative form of recruitment may fall within the 30-day filing period if necessary to ensure the ETA 9089 application is submitted to the DOL before the recruitment period expires at 180 days from the date the first form of recruitment was posted.

FILING FORM ETA 9089

Form 9089 – Application for Permanent Employment Certification – may be drafted during the recruitment process, however, it cannot be finalized until after the required recruitment process is completed.  Once the form is finalized, it must be approved by both the employer and employee before submission to the DOL.

 If the DOL does not select the ETA 9089 Application for audit, it should take approximately 6 months for the DOL to review and approve the PERM application. If there is an audit on the application, it can take an additional several months to over a year for the DOL to adjudicate the PERM application after the audit response has been submitted.  Please note the provided processing time is subject to change as DOL processing times change frequently.


2. Filing of I-140, Immigrant Petition for Alien Worker

After the PERM Application has been approved (or “certified”), the second stage of the employment-based permanent resident process, also referred to as the “Green Card” process is to prepare and file the I-140 petition with U.S. Citizenship and Immigration Services (“USCIS”). 

 

The I-140 petition must be prepared and filed within the validity period given in the certified ETA 9089 application.  This petition can typically be prepared and filed within a few weeks from the date the certified ETA 9089 application is received. 

At this stage the employer is required to show they have the ability to pay the wage offered and the that foreign national possesses the education, experience and skills required in the ETA 9089 application. 

It should take USCIS between 6 to 10 months to adjudicate the I‐140 petition, assuming there is no Request for Evidence (RFE).

If there is an RFE issued, it can take an additional several months for the I‐140 petition to be approved.

Note: There is an expedite option available for I-140 petitions. You may pay a fee of $2,500 to request Premium Processing Service for the I-140 petition. Paying this fee will guarantee that USCIS will approve, deny, or issue an RFE for your I-140 petition within 15 business days (three weeks) of receipt.


3. I-485, Final Phase

The final stage of the employment-based permanent resident process is to prepare and file the I-485 application with USCIS. 

Please note the foreign national’s immediate dependents (spouse and children) may also join the foreign national employee at this phase in the process and file their own applications as the foreign national employee’s dependents.

In most cases the foreign national and his or her dependents are already residing in the U.S., thus it is easier and more beneficial for the foreign nationals to file an I-485 Application to Adjust Status.

If they are not residing in the U.S., a DS-260 Immigrant Visa Application may be filed with the U.S. Consulate abroad that has jurisdiction over their foreign residence.

The eligibility to file the I-485 application with USCIS is determined by the foreign national employee’s given priority date.  The priority date would be the date the ETA 9089 application was filed with the DOL. 

The priority date essentially holds the foreign national’s place “in-line” in connection with the availability of immigrant visa numbers in the United States.  Immigrant visa availability is tracked and summarized in the U.S. Department of State’s Visa Bulletin.  The Visa Bulletin is issued monthly as dates can either progress or regress on a monthly basis.

The foreign nationals priority date for the employment-based permanent resident process falls under Employment-Based Preferences Charts located in the DOS’ Visa Bulletin website.  The eligibility to file is based on the foreign national’s priority date, country of birth, and employment-based preference (i.e. EB-2 or EB-3).  If the foreign national employee’s priority date is current, the I-485 application may be filed with USCIS concurrently with the I-140 petition. 

If the priority date is not yet current due to quota backlogs, then it may be several months or years before the individual may file the last phase in the employment-based permanent resident process. Bay Immigration Law will continually track the Visa Bulletin and the priority dates for its clients to ensure the I-485 application may be filed when eligible.


PROCESSING & TIMELINE
  • There is no expedite option available for I-485 applications.
  • When filing the I-485 application, we can also concurrently file applications for an Employment Authorization Document (“EAD”) (USCIS Form I-765) and for an Advance Parole Travel Document (“AP”) (USCIS Form I-131). Once the foreign national possesses a valid EAD/AP card, he or she can travel abroad and re-enter the   U.S. without a visa if the foreign national carries their valid EAD/AP card and passport with them.
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