THE ABC’S OF IMMIGRATION – THE THIRD EMPLOYMENT BASED PREFERENCE Each year 140,000 employment-based immigrant visas are available. Ten thousand of these are available to immigrant investors, the EB-5 visa category. Ten thousand are available to “special immigrants,” such as religious workers, certain employees of the US government abroad, and widows and widowers of US citizens, the EB-4 visa category. The remaining 120,000 visas are divided between the first three preferences. Forty thousand visas are available in the first preference, EB-1, which covers international managers and executives, outstanding professors and researchers, and people of extraordinary ability. Forty thousand visas, plus any that are not used in the EB-1 category, are available in the second preference, EB-2, which is available to aliens of exceptional ability and advanced degree professionals. Forty thousand visas, plus any that remain from the other two categories are available to the third category, EB-3, which is available to people with a bachelor’s degree, skilled workers, and unskilled workers. The EB-3 category is the focus of this article.
There are several requirements common to each of the first three employment based preference categories. - The alien must be offered a full-time, permanent position in the US (note: there are some exceptions to this requirement in the first two preference categories).
- The Department of Labor must certify that there are no available US workers (note: there are some exceptions to this requirement in the first two preference categories).
- The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.
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. In February 2000, the visa cut-off date in this category is March 1, 1994.
Professionals who hold a Bachelor’s Degree
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.
Skilled Workers
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 INS 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 INS 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 INS.
Other Workers
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.
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, an application for an immigrant worker may be filed. The form used for this petition is the I-140 Immigrant Petition for an Alien Worker. It is submitted to the appropriate regional INS Service Center along with the approved labor certification and a letter from the employer.
Other items that must be included with the petition are documents showing that the employer has the financial resources to pay the offered wage, which must be shown to be at least the prevailing wage. There must also be 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 INS 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. Both of these options are discussed in other articles. < Back | Next > Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. | 
