Employment-based third preference (EB-3) is divided into 3 sub-categories EB-3A Professionals, EB-3B Skilled Workers, and EB-3C Other Workers.
There are three features of EB-3
1.This preference requires both a job offer by an employer who will file the petition, and a labor certificate
2.The preference is allotted about 40,000 annual visas, plus any visas unused in the first two employment-based preferences.
3.Immediate family member can also immigrate with the employment-based immigration. No separate immigration visa petition is required.
Common requirements
1. The alien must be offered a full-time, permanent position in the US.
2. The Department of Labor must certify that there are no available US workers
3. The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.
4. The employer must be able to pay the alien's salary
5. The alien and employer must be both intend to for the alien to undertake the position
PERM Introduction
On March 28, 2005 The foreign labor certification process has been replaced with the Program Electronic Review Management system or PERM. The Department of Labor's (DOL) goal is to speed up and streamline the foreign labor certification process.
PERM is the new labor certification system that will allow employers to file labor certification petitions online. Employers will not need to submit supporting documentation with the cases and will instead retain all documentation for inspection in the case of an audit. A percentage of all cases will be flagged for a more extensive supervised recruitment process, but most will be approved within 45 to 60 days.
PERM Qualifying Criteria
Applications filed on or after March 28, 2005, must file using the new PERM process and adhere to the new PERM Regulations;
a. The employer must hire the foreign worker as a full-time employee;
b. There must be a bona fide job opening available to U.S. workers;
c. Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity.
d.The employer must pay at least the prevailing wage for the occupation in the area of intended employment.
e.To qualify for EB-2 advanced-degree professionals (Bachelor's degree with 5 years progressive experience or Master's degree with zero experience ), not only the beneficiary must meet the aforementioned requirements, but also the employer must pay very high salary to get the beneficiary into EB-2 category. The employer must pay a future salary over $90, 00.00 for most professions.
Process for Filing Perm
a. Prevailing wage. Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA). The employer must offer recruits 100% of the prevailing wage or higher..
b. Post Notice. After receiving the PWD, but between 30 and 180 days before filing the application with PERM, the employer must post notice of the job opportunity and it must remain posted for at least ten (10) consecutive business days in and appropriate location.
c. Place Job Order A job order must be placed with the SWA for a period of 30 days prior to filing PERM. The SWA then posts the job for recruitment purposes on the state's job web site.
d. Pre-Filing Recruitment Steps. All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.
e. Audits/requests for information: Supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.
f. Retention of records. The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.
g. Refilling. If a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all requirements of the new PERM regulation.
h.Online filing. The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically.
i.Approvals. If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer/agent who submitted the application.
j.Appeal of Denials: A denial of an application for labor certification may be reviewed by the Board of Alien Labor Certification Appeals ("BALCA").
EB-3B Skilled Worker means an alien who is capable of performing skilled labor requiring at least 2 years training or experience. This sub-category covers a variety of skilled workers who do not have a bachelor's degree, for example, a specialty foreign food cook (e.g. Chinese, Japanese, Italian food) may qualify as a skilled worker.
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.