EB-3, Employment-Based Green Cards: Untangling the EB-3 Tango

eb-3 visa

Nothing says that America wants you like a process that takes at least two years before being able to apply for a green card … welcome to EB-3s, the third employment-based green card category!

Employees often ask about the company sponsoring them for a green card, they will say, “something about making sure that only I can do the job.”

Well, this is it … this is the type of visa that requires U.S. employees to test the labor market to ensure there are no other willing and qualified U.S. citizens or permanent residents that can do the job before they offer the position to you.

Once that’s all said and done, then you’re halfway to permanent residency in the U.S.  The rest of the journey, according to the monthly visa bulletin[1], will take about another year or so, maybe 12, if you’re lucky 😊.

Testing the Labor Market

The defining feature of the EB-3 visa is the labor market test, the process known as PERM – Program Electron Review Management – the conclusion of which is a certified application for employment that is the basis for employers’ petitions when sponsoring employees for a green card.

The PERM process involves three steps:

  1. Prevailing Wage
  2. Recruitment
  3. Labor Certification

Prevailing Wage: Based on the job description, requirements and benefits, it is the average wage, or wage range, employers offer for the same or similar position within a certain geographic area.  The prevailing wage is filed with and confirmed by the U.S. Department of Labor, typically, before the employer advances to the recruitment step in the process.

Recruitment: This step is the actual test of the labor market, requiring employers to advertise the job for 2 weeks in the local newspaper and for 30 days with the State Workforce Agency serving the area where the job will be performed.

If the position is one that requires at least a bachelor’s degree or higher, the employer must select 3 additional recruitment steps to conduct.

Recruitment can be dicey, ensuring that it is followed to a T, but the diciest part is making sure to complete it within strict timing parameters – no more than 6 months before filing the application for permanent employment certification, taking into account a 30-day cooling off period following the completion of the last recruitment step. 

Though it may sound simple, it can sometimes be easier said than done.  One misstep could tank the last phase – a labor certification.

Labor Certification: Only after the strict requirements for recruitment have been fulfilled can the employer file the application for permanent employment certification with the U.S. Department of Labor, proving that all “Is” were dotted, all “Ts” were crossed, and no suitable candidate could be found for the job.

If the U.S. Department of Labor agrees, it then issues the employer a certified application for permanent employment allowing the employment-based petition to be filed with USCIS and the job to be offered to the non-U.S. citizen, if the petition is approved.

What Is an EB-3 Visa

The EB-3 visa – “EB” standing for “employment-based” and the “3” referring to the third of the five employment preference categories – is an immigrant visa that allows U.S. employers to hire foreign nationals who are skilled workers, professionals or other workers.

So long as the foreign worker will not engage in work that is temporary or seasonal in nature, they are eligible for the visa.

Virtually, anyone can qualify for this visa essentially.

EB-3 Eligibility Requirements

Once the U.S. employer has successfully tested the labor market for unavailable U.S. workers, resulting in a certified application for permanent employment (aka a labor certification), the foreign national must meet the following to be eligible for the EB-3 visa by possessing:

  • A job offer from a U.S. employer for full-time, permanent employment; and
  • Requirements of the job; and
  • Qualifications for one of the below classifications that correspond with the position:
    • Skilled workers – be capable of performing skilled labor that requires at least two years of experience or training.  Post-secondary education may be considered as training.
    • Other workers – be capable of performing unskilled labor that requires less than two years training or experience.
    • Professionals – hold at least a bachelor’s degree or a foreign equivalent

An EB-3 petition filed by the U.S. employer with and approved by the USCIS determines that the eligibility requirements have been met by the foreign national.

Applying for the Visa: Consular Processing vs. Adjustment of Status

With an approved EB-3 petition, foreign nationals may apply for an EB-3 immigrant visa at the U.S. embassy or consulate in their country of residence, if living outside the U.S.

This is known as consular processing

The immigrant visa application is completed and submitted online, supporting documents are sent to the U.S. embassy or consulate, followed by an interview with a consular officer who processes the visa application.

Alternatively, those living in the U.S. may file an adjustment of status (“AOS”) application with USCIS along with their supporting documents.

Typically, AOS applicants also undergo an interview, but with a USCIS officer, who makes the decision on the application.

The Finish Line – The Green Card

Whichever lengthy, painstaking application process is chosen – consular processing or adjustment of status – the result is the same upon approval: the coveted green card.

The finish lined is crossed with the green card in hand thereby allowing you your American dream to permanently live and work in the U.S.

And My Family Members?

Remember a petition was briefly mentioned above?  When the U.S. employer files the petition under the EB-3 category, it is then when family members may be included.

Every petition has a beneficiary, and the foreign worker is known as the primary beneficiary of the petition while family members are called derivative beneficiaries.

Derivative beneficiaries include spouses and unmarried children under age 21 … they too get green cards, if included in the process.

Think of the EB-3 visas like assembling IKEA furniture – a whole lot of time needed to tackle the complex, confusing, and many mysterious pieces you didn’t even know existed.  It’s a marathon, not a sprint, and definitely not a solo project unless you enjoy headaches and paperwork-induced existential crises.

So, bring in the pros and let us navigate the EB-3 maze because good things come to those who wait … and wait … and wait!

Disclaimer: The information provided in this blog post is for general informational purposes only and does not constitute legal advice.  While efforts are made to ensure the content is accurate and up to date at the time of publication, laws and regulations may change, and the information may no longer be current.  You should consult a qualified legal professional for advice specific to your situation.

[1] Every month the U.S. Department of State publishes what is known as the visa bulletin, which summarizes when immigrant numbers are available so that beneficiaries of approved family- and employment-based petitions may apply for an immigrant visa or file an adjustment of status application.