Third Preference Employment Based Immigration - Skilled and Professional Workers
All
petitions filed in the EB-3 category require a job offer and a labor
certification (the labor certification process is discussed in depth in a
different article). Despite this common element, there are important
differences between the three subgroups. Regardless of the total number of
visas available in the EB-3 category, only 10,000 visas are available each year
for unskilled workers. The result of this is a backlog in the “other
workers” category. The category has been backlogged by about six years
as of mid-2005. The rest of the EB-3 category has also been backlogged recently
and is expected to become more and more oversubscribed in the next few years.
Consequently, applicants would be wise to begin planning early to deal with
their permanent residency.
Who is considered a professional by the USCIS?
This category is available only to those who hold a US bachelor’s degree or
its foreign equivalent. Unlike the H-1B nonimmigrant category, one is not
able to make up for a lack of education through experience. A profession
is a field entry into which requires at a minimum a bachelor’s degree.
While these two requirements seem to equal the same thing, there is no
requirement that the bachelor’s degree be in the field of offered employment.
Who is considered a skilled worker by the USCIS?
For a person to qualify as a skilled worker, the position offered must require
at least two years training and experience. The alien must possess the
requisite background, but simply because the alien has two years of training and
experience does not make it a skilled position if it does not otherwise require
two years of training and experience.
Under USCIS regulations, whether a position involves skilled labor is determined
by reference to the Department of Labor approved labor certification.
Because of the backlog in the other worker category, it is vitally important
that the employer demonstrate to the USCIS that the position does require at
least two years training and experience. The primary issues that occur
here result from conflict between the employer’s belief that the position does
require two years and Department of Labor guidelines on specific vocational
preparation that show the position requires less. Therefore this issue
will be resolved before the application is submitted to the USCIS.
Who is considered an other worker by the USCIS?
This
category covers “unskilled labor,” defined by the Department of Labor as
work that takes less than two years training or experience to perform.
Because there is an annual limit of 10,000 visas in this subcategory, regardless
of how many are available in the entire EB-3 category, there are extreme
backlogs in visa numbers for this category. Currently this backlog is
about six years.
What should someone know before applying for the EB-3 visa?
After the Department of Labor has approved the labor certification, or in cases
in which the Department does not need to approve a labor certification (such as
a Schedule A case for a nurse), an application for an immigrant worker may be
filed along with a concurrent adjustment of status petition. The principle
forms used for these petitions are the I-140 Immigrant Petition for an Alien
Worker and the I-485 adjustment of status application. The forms are
submitted to the appropriate regional INS Service Center along with the
approved labor certification, a letter from the employer and the appropriate
additional supporting documents and filing fee.
Normal petition items include documents showing that the employer has the
financial resources to pay an offered wage which is at least the prevailing
wage. An application must also include documentation that proves the
position is within the preference category sought. In the EB-3 category,
this evidence would depend on which subclassification is sought. Such
documentation can come from Department of Labor resources, or from industry
standards. Finally, evidence must be submitted that the alien meets the
job requirements, such as a copy of a bachelor’s degree or evidence of work
experience.
If the USCIS approves the petition, the applicant can now pursue permanent
residency by either adjustment of status in the US or by consular processing at
a US Consulate in their native country.
About The Author
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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