YOUR GUIDE TO THE EB3 VISA
Benjamin Frear, Esq.
Immigration Lawyer For Employers & Entrepreneurs | Practicing Immigration Law Across The US
The EB3 Visa Guide: Table of Contents
What Is The EB3 Visa?
The EB3 Visa(employment based third preference) is an immigrant visa category that is available to many different types of foreign national employees including professionals, skilled and unskilled workers. Basically, all full time employees(of a US company) who do not qualify under the first two employment categories(EB1 and EB2) will be able to qualify for an EB3 Visa there are no US workers who are able and willing to do the job.
Understanding The Preference System
The preference system limits the number of immigrant visas that can be issued each year.
Under the preference system, employees are placed in different categories. The first category(EB1 Visa) includes managers and executives of multinational companies as well as individuals of extraordinary ability. In order to qualify for the second category(EB2 Visa) the employee will need an advanced degree or the equivalent, have exceptional ability or perform work that is in the National Interest of the US. The third category(EB3 Visa) is generally used for all other employees.
A visa backlog forms when too many people from a country apply for a certain type of visa(ie. EB1, EB2, EB3).
Since there tends to be a larger backlog for EB3 Visas—as compared to higher priority categories—employers should carefully evaluate the possibility of fitting the employee into another category before proceeding.
Also, there is a separate limit(10,000 visas per year) for workers who fall into the “other workers” category. This group includes foreign nationals who are filling jobs that require less than 2 years of training and work experience. As a result of this limit, “other workers” often experience a longer wait than other EB3 employees.
The Position Determines the Category Under the Preference System
Just because a foreign national has a background that fits the EB2 Visa category does not mean that they will qualify for that category. The reason being that the position determines the category. For example, an accounting firm may love the fact that a prospective employee has a master’s degree in accounting. But, if the position only requires a bachelors, then the employee will fall into the EB3 Visa category.
Typical EB3 Visa Jobs
There really are no typical EB3 jobs since so many positions can qualify. Here is a list of occupations to demonstrate the variety of occupations that could use this category…
- Truck Drivers
- Business Consultants
- Financial Analysts
- Software Developers
- Interior Designers
Benefits Of The EB3 Visa
The main benefit of the EB3 Visa is that it is available to all workers. Small and large companies that are having difficulty finding employees to fill positions will be able to obtain an EB3 Visa for a qualified foreign national. But, before doing so, they must demonstrate that they were unable to find qualified workers who were willing and able to do the work.
EB3 Visa Requirements
The basic requirements of the EB3 Visa are as follows:
The Foreign National is filling a full time position for which they are qualified
The US employer has the ability to pay the offered wage
There are no willing and able US workers who can fill the position
EB3 Visa Process: Part 1
There is a government mandated recruitment and application process(the PERM process) that employers must follow in order to sponsor an employee for an EB3 Visa. This process which is designed to ensure that there are no qualified US workers typically involves the following steps:
- Determining the minimum requirements for the job
- Evaluating the employees qualifications
- Requesting the prevailing wage(ie. the minimum wage for the position) from the Department of Labor
- Posting the job on the relevant State Workforce Agency(SWA) site for 30 days
- Posting the job in the Sunday edition of the newspaper that serves the employment area
- Posting a notice at the job site for 10 business days
- Filing form 9089 with the Department of Labor
- Responding to audits(if applicable)
EB3 Visa Process: Part 2
The second part of the process(after approved 9089) will depend on the employee’s situation.
I-140 & Consular Processing
If the employee is outside of the US, the employer will file form I-140, Immigrant Petition for Alien Worker with USCIS along with supporting documentation including the approved 9089 and proof of their ability to pay the wage. Next—after approval—the employee will apply for an immigrant visa through the Department of State once the their priority date is current. For more information on EB3 Visa priority dates, take a look at the visa bulletin that is released monthly by the state department.
After approval of the I-140, the foreign national will begin visa processing. This involves:
- Paying the visa fee of $325
- Submitting various documents to the National Visa Center(NVC) including an application and civil documents
- Attending an interview
After a successful interview the immigrant visa will typically be issued within a week. These visas are generally valid for six months.
I-140 & Adjustment of Status
If the foreign national employee is currently in the US in authorized status—and their priority date is current—they may be eligible for adjustment of status. Adjustment of status is available if …
- The foreign national was inspected and admitted/paroled into the US
- The foreign national “is eligible to receive an immigrant visa”
- “[A]n immigrant visa is immediately available to him at the time his application is filed”
- The foreign national “makes an application for such adjustment”
- The foreign national “is admissible to the United States for permanent residence.
For adjustment of status cases, the employee will simultaneously file the I-140 and I-485(application for adjustment of status) along with a request for work authorization(I-765) and advanced parole(I-131).
Under the current regulations, the employee is also required to file a declaration of self-sufficiency(form I-944 & supporting financial documents) to prove that they are not likely to become a public charge. Before making a final determination, USCIS will schedule an interview with the employee.
EB3 Wait Times
Since the wait times vary depending on the current workload at the DOL and USCIS, it is hard to accurately estimate the amount of time that an EB3 Visa process will take. Despite that reality, I will give you an estimate based on my most recent experience.
PERM Time Frame
For the first part of the process(PERM) it generally takes 9-12 months to receive a decision(that allows you to move on to the next step). This timeline can be sped up by 3-4 months if the employer wants to start PERM recruitment before obtaining a prevailing wage from the Department of Labor.
I-140 and Consular Processing Stage Timeline
Once the I-140 is filed, a decision can be expected within 5-7 months unless premium processing is requested which shortens the wait to 15 days. After the approval notice is received, the consular processing stage begins which will usually take 3-5 months(Note: Covid-19 could create much longer wait periods for interviews due to limited staff).
I-140 and Adjustment of Status Timeline
If the employee is in the US and elects to file adjustment of status, the current(rough) timeline looks like this:
- Approval of I-765(work authorization):6-8 months
- Approval of I-130 and I-485: 12 months
NOTE: These predictions assume current priority dates. Typically, the EB3 Visa category is backlogged. If there is a backlog at the time of I-140 approval, there could be an additional wait that lasts several months to several years.
The EB3 Visa is great due to the fact that the category covers all employment positions. Unfortunately, the process for obtaining this type of visa is long and tedious. Work with a knowledgeable immigration lawyer to explore your options and increase your odds of success. Feel free to reach out to me at email@example.com if you have any questions.