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EB-2, EB-3 Visa Categories and Labor Certification Requirements

1. Who Qualifies for EB-2 Visa for Advanced Degree Professionals

One of the common ways in which educated foreign workers get employment-based Green Cards in the U.S. is utilizing a category known as EB-2. This is the second preference categories of U.S. immigrant visas. Category EB-2 includes members of the professions who have earned an advanced academic degree. The person must also either have a job offer from a U.S. employer or qualify for a National Interest Waiver.

Before the foreign national can apply for an EB-2 visa and Green Card, however, the U.S. employer offering the job must seek Labor Certification. Labor certification is confirmation from the U.S. Department of Labor (DOL) that the employer has gone through an adequate recruiting process, and rightly determined that no qualified American workers are willing and available to take the job, thus necessitating that the employer turn to foreign sources of labor. 

An important advantage to obtaining a Green Card under category EB-2 is that the process often moves faster than in related labor-based visa categories, such as EB-3. It is a simple matter of supply and demand: fewer people meet are able to the qualifications for this category than for others. Given that the number of employment-based visas approved per year is limited by U.S. law, submitting an application in a category with lower demand can reduce the waiting time significantly. A foreign national who qualifies for an EB-2 visa could potentially obtain a Green Card years sooner than an applicant who qualified for only an EB-3 visa, for example.

2. Meeting the Academic Qualifications for an EB-2 Advanced Degree Visa

To meet the basic legal requirements for an EB-2 visa, the foreign national must have earned an advanced academic degree, such as a Master, Ph.D. Juris Doctor (J.D. or law degree) or an M.D. (medicine). 

In one situation, however, the foreign national does not need a degree beyond baccalaureate. U.S. Citizenship and Immigration Services (USCIS) definition of advanced degree includes a B.A. or B.S. followed by at least five years of progressive experience in the specialty which it considers to be the equivalent to a master degree. The progressive aspect of the experience means that the level of responsibility the worker exerted, the complexity of the tasks taken on, and the knowledge gained in that position must have increased progressively over the course of the five years.

1) Special Challenges When the Employer Seeks Labor Certification: Employers planning to sponsor immigrants in category EB-2 must take particular care when listing the minimum requirements for the position. The employer must clearly state that the minimum requirements are a master degree or a bachelor degree plus five years progressive post-bachelor degree experience. If the employer says, for example, that the minimum requirement is either a master degree or a bachelor degree plus a mere two years experience, that will not be enough to gain approval. And making this statement alone will not be enough - the employer will need to prove that the job truly does require such progressive experience.

2) Timing of Gaining the Needed Work Experience: If the foreign national is relying on a B.A. plus five years experience, there are some catches to be aware of. The worker must have met the minimum requirements before, not after, the employer files the labor certification; and in most cases, before having even been employed by the sponsoring company. The DOL does not ordinarily allow a foreign national to count experience gained with the sponsoring employer. 

Also critical is that, if the foreign national is claiming to have a bachelor degree plus five years progressive experience, the five years experience was gained subsequent to obtaining the bachelor degree.

3. EB-3 Visa for Professional, Skilled, and Unskilled Workers

This Green Card category is useful for many types of workers, but can also involve long waiting time. The third preference category of U.S. Green Cards (EB-3) available through employment is fairly broad, and it includes:

  • Professional workers;

  • Skilled workers, and

  • Unskilled workers.

The foreign national will need a permanent, full-time job offer from a U.S. employer. The employer will need to start the process by obtaining an approved labor certification from the U.S. Department of Labor, confirming that the employer attempted to recruit U.S. workers for the job, but found none who were willing and qualified. Labor certification is required for all three EB-3 subcategories.

A limited number of EB-3 Green Cards available each year - only 40,000 in total, of which 10,000 are allotted to unskilled workers. The result is that workers who are classified as unskilled often have to wait much longer for Green Cards than workers in the two other subcategories. It depends on how many other people apply, but the demand for unskilled workers is high. The waiting time would get to be as long as years, depending on what country the worker is from, and per-country limits also affect the allotment of visas.

1) Professional Workers (No Advanced Degree) Subcategory of EB-3: Who is considered a professional? Immigration law is unclear on the definition of this word, stating only that professionals include such occupations as architects, lawyers, physicians, engineers, and teachers. Aside from these examples of professions, U.S. Citizenship and Immigration Services (USCIS) tends to accept as professionals workers with a university degree working in their field of expertise.

A worker who holds nothing higher than a bachelor degree and has fewer than five years of work experience is probably a good fit for this category, presuming the job being offered is one that normally requires a bachelor degree. (With five years of experience, the worker might be able to qualify in a higher preference category, EB-2.) As long as the worker has the necessary degree, proving eligibility in this category is fairly straightforward.

2) Skilled Workers Subcategory of EB-3: Workers performing occupations that do not ordinarily require college degrees, but do need at least two years of training or experience, fit the subcategory of skilled workers. For example, the EB-3 category may be used for certain types of computer and technical workers (not researchers or managers), chefs, construction first-line supervisors, reporters and journalists, graphic designers, and fashion designers. If the person has done postsecondary training in the field, that can be counted as training.

3) Unskilled Workers Subcategory of EB-3: Any job not falling into one of the subcategories described above would best fit the EB-3 subcategory of unskilled workers. Occupations requiring less than two years training or experience are usually considered unskilled. 

Housekeepers, nannies, janitors, garden workers, nurse aides, and farm workers are among the likely applicants. Of course, the worker qualifications must satisfy whatever requirements the job does normally have, or the person will not be granted a Green Card under this EB-3 subcategory. For example, if the worker has been offered a job requiring a one-year vocational training program, he or she must finish this program before expecting to start working for the sponsoring U.S. employer.

4. EB-2 Visa for Persons of Exceptional Ability and National Interest Waivers

Within the second preference category, there is a subcategory known as EB-2(B), meant for foreign nationals of exceptional ability in the sciences, arts, or business. The person must either have a job offer from a U.S. employer or qualify for what is called a National Interest Waiver (NIW). Typical cases of who qualifies for an EB-2(B) visa might include economists, lawyers, doctors, veterinarians, physicists, market research analysts, geographers, mental health workers, and marriage and family therapists.

The exceptional ability subcategory is easily confused with the employment first preference priority worker subcategory for persons of extraordinary ability, but the requirements are slightly less narrow. The main benefit of the EB-2(B) subcategory is that the foreign worker need not have received international acclaim in the field of specialty. Proven sustained national acclaim will meet the required standard. The worker must, however, still be considered significantly more accomplished than the average person in the same profession.

If the presence of a worker can be shown to be of benefit to the U.S. in the future, it may be possible to apply in this category without having a job offer or Labor Certification. In order to demonstrably benefit the U.S., the applicant will have to show that his or her there will have a favorable impact on the economic, employment, educational, housing, environmental, or cultural situation, or on some other important aspect of U.S. life. The impact must be national in scope - such that a public health researcher at a federal agency or a university might pass, while the same person coming to provide services at a neighborhood clinic would probably not.

The applicant will also need to prove that the field of work has substantial intrinsic merit, in other words, that it is worthy in and of itself. In addition, the applicant will need to demonstrate that the work will prospectively benefit the U.S. national interest to a substantially greater degree than a similarly qualified, available U.S. worker would. Unfortunately, USCIS often reinterprets this requirement to mean showing that being forced to go through the labor certification process would actually have an adverse impact on the U.S. national interest. A local labor shortage is not considered to be an adverse impact.

Please click the link here to see more information about National Interest Waiver (NIW)

5. File Two Green Card Application at the Same Time

When choosing different Green Card application categories, the Labor Certification may be considered. However, the Labor Certification process is long to get approval. Thus, serious thought could be given to the petition of EB-1 or NIW, according to an applicant's qualification.

If you believe that you could meet the qualification requirements of EB1 or NIW, applying Green Card through Labor Certification should not be your first choice. Another option is to file two petitions at the same time - a petition based on Labor Certification, and another petition based on NIW or EB-1.

6. Can I Use the “On-the-Job” Experience in PERM Labor Certification Application?

The PERM labor certification application should state the employer’s minimum educational and experience requirements for the offered position. It could be an issue if the alien employee gained all or a part of the required experience for the position while employed by the sponsoring employer. The required education and experience should be limited to the minimum for any person applying for the job. The U.S. Department of Labor (DOL) is skeptical of the accuracy of the stated minimum requirements, if these requirements exceed the qualifications when an applicant was initially hired by the employer.

The DOL is only interested in the minimum requirements for a person to do the job, not the requirements for the ideal candidate. Thus, the DOL will be skeptical if the employer files a PERM labor fora position which states that the requirements for this particular job are a bachelor’s degree plus five years of experience "for the ideal candidate."

Although the employer may consider the position as already filled by an alien employee, but DOL views that the alien employee's job is temporary, allowed to work in U.S. temporarily based on the H1-B or L-1 or other working visa. There should be a test of the U.S. labor market for the permanent position to be filled by the U.S. employer, to ensure that there are no able and willing U.S. workers who are minimally qualified and can perform the alien employee's job adequately.

Using on-the-job experience in a PERM labor certification application case may increase the risk of a DOL audit and decreases the chances of PERM labor certification application approval. It is unfortunate that restrictions on the use of experience with the sponsoring employer influences some people to change employers. In some cases, alien employee may need to use on-the-job experience to qualify for particular positions. While it is challenging, it is also possible to use experience gained with the sponsoring employer.

7. Prepare the Labor Certification Carefully to Avoid Problems at the Form I-140 Application Step

The chances of the Form I-140 application success for an immigrant visa are mainly determined at the Labor Certification step. Therefore, the labor certification needs to be drafted carefully to avoid problems at the Form I-140 application step, such as the employer's "ability to pay" issue. An alien beneficiary may get Form I-140 application success if the employer is sponsoring the Green Card application from the time the labor certification is filed.

Ability to pay means a company’s ability to pay the wage listed on the labor certification to the foreign worker. Many green card applicants are under the mistaken impression that the ability to pay calculation begins only at the time of filing the Form I-140 petition. But actually, a company must demonstrate ability to pay from the time of filing the labor certification until the alien beneficiary has adjusted his or her status and become a U.S. permanent resident.

The easiest and most preferred method to demonstrate that a company has the ability to pay, and obtain an Form I-140 approval, is for the alien beneficiary to work for the company, and be paid the wage listed on the labor application from the time of the labor certification filing.

USCIS accepts only 2 forms of evidence to show the ability to pay: 1) an audited financial statement, which are time intensive and costly to prepare, especially for smaller companies, or 2) the company’s tax returns.  Either way, the net income of the company must be greater than the wage payment.

Sometimes, USCIS may send a Request For Evidence (RFE)  letter sending to the Form I-140 petitioner to ask for evidence of “ability to pay all”. This means the company must demonstrate its ability to pay not just the alien beneficiary, but also the wages of all other employees they have filed I-140 petitions for. For some companies, reporting a high net income on the tax return is not usually in their best interest. This can lead to th Form I-140 being denied if the company does not report a net income high enough to cover the total of all pay gaps for all Form I-140s ever filed.

8. File PERM Labor Certification Late and the Rules for H-1B Extensions

The allowable time for H-1B status in U.S. is 6 years. For an alien to be eligible to extend H-1B status beyond 6 years, it is necessary to qualify certain requirements and conditions, as defined in the "American Competitiveness in the Twenty First Century Act (AC21)". The  first requirement is that the H-1B holder must be the beneficiary of an Labor Certification filed 365 days before (known as the 365-day rule), or the Labor Certification and USCIS Form I-140 must be approved already.

The 365-day rule relates to an alien's ability to extend the H-1B status beyond 6 years. Therefore, it is often recommended that the U.S. employer should file the PERM Labor Certification application at least 365 days before the end of the six years of H-1B status, but it does not mean that the PERM Labor Certification cannot be filed within the 6th year of H-1B status.

The outcome of a Labor Certification filing is not connected to the time the beneficiary has remaining in H-1B status. A Labor Certification application decision does not depend upon the immigration status of the alien beneficiary. The U.S. Green Card application is related to a future job offer concept, unlike the ability to obtain H-1B extensions to live and work legally in U.S.

Some aliens with H-1B status often ask whether it is too late for the U.S. employer to file a PERM Labor Certification for them, because they are approaching the 6th year of H-1B status, and the economic downturn have delayed the employer's ability to file the PERM Labor Certification early for these H-1B status holders. Some people may assume that it is difficult to file a PERM Labor Certification, if one is in the 6th year of H-1B status already, but actually Labor Certification can be filed at any time, even in the 6 years of H-1B status in U.S.



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