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Immigration Law Blog

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EB-3 Visas: A Permanent Option when H-2Bs are Limited

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On December 21, USCIS announced that it had reached the numerical cap for H-2B visas for the first half of 2018.  For many employers who hire seasonal workers, this can mean a major shortage of workers and possibly an inability to do business.  Many business owners are now looking into the option of doing EB-3 visas for their foreign-born employees. This post explains the general requirements and the EB-3 process.

What is an EB-3 Visa?

An EB-3 visa is one of several different types of employment-based immigrant visas that allows an employee to enter the United States as a permanent resident (i.e. a green card holder).  A permanent resident is allowed to live and work in the United States permanently, so long as he or she does not do anything that makes them deportable from the United States.

EB-3 Requirements

In order to successfully obtain an EB-3 visa, the following requirements must be met:

  1. The job must be permanent
  2. The job must be full time
  3. The job offer must be from a U.S. employer
  4. There must be no qualified U.S. workers available
  5. The employee must fall into one of the following three categories:Professionals: must possess a baccalaureate degree, or degree equivalent, that is required for entry into their occupation.Skilled Workers: must show at least 2 years of job experience or training.

    Other Workers: unskilled labor that requires less than 2 years of training or experience.

The EB-3 Process

The process of requesting EB-3 immigrant visas for your employees generally involves three steps.

The Labor Certification

First you must obtain a labor certification.  In order to do so, you must test the labor market by recruiting U.S. workers for each of the positions available.  You must obtain a prevailing wage determination and then advertise each position that you intend to fill with foreign-born workers.  It is extremely important to carefully craft the job descriptions.  Once recruitment is complete, you must submit ETA-9089 to the Department of Labor for each applicant.

Form I-140

After the Labor Certification for the specific position is approved, you can then file forms I-140 for each applicant.  This is the visa petition for each individual employee.  This is also the part of the process where at times there has been quite a long line for a visa number to become current.  However, in the January 2018 visa bulletin, the Department of State says that visas processing for your employees’ category is current for most countries. Therefore, so long as this remains constant, there should not be much of a wait outside of the visa processing itself.

Adjustment of Status or Consular Processing

Once the I-140 is approved and the priority date is current (i.e. a visa number is available), the employee can either file an I-485 to adjust his status here in the United States (so long as he is current in lawful status and is not otherwise inadmissible) or he can begin the process of requesting a visa interview at the consulate in his home country (this is known as “consular processing”).  For both adjustment of status and consular processing there is a lengthy application that must be filled out online for each employee (and each derivative family member he intends to bring with him), and we must submit supporting documents to the National Visa Center.  After all of that is completed, the case will be sent to the consulate for interview scheduling.

Upon completion of the interview, the visa decision will be issued.  When a visa is approved, a visa is usually issued within 1-2 weeks, and the individual must enter the United States within six months.  Once an employee arrives in the United States, he will be a permanent resident and his green card will be mailed to him.

Other Considerations

The Job Must be Year-Round

In order to obtain an EB-3 visa, the job must be “permanent” which means that the employment must be year-round.  H-2B visas are exactly the opposite: the employment must be seasonal.  This is handled in the crafting of the job description prior to recruitment for the labor certification.

Playing the Waiting Game

While EB-3 visas are potentially a long-term solution for many employers, it’s important to note that this is not a quick process.  You have to wait on the prevailing wage, wait while your advertisements are posted, wait for the labor certification approval, I-140 approval, consular appointment, etc.

Immigrant Intent

An EB-3 visa is a permanent visa, meaning that a beneficiary of an EB-3 must permanently reside in the United States.  An H-2B visa is the opposite: the beneficiary must only reside temporarily in the United States and not of the intent to stay permanently.  Given this requirement, the timing of filing the EB-3 petition is important.  Generally, we recommend that employees consular process instead of adjusting status so as not to encounter any fraud issues where the government believes they intended to stay permanently on a temporary visa.

Inadmissibility Issues

In order to be granted any type of immigrant visa, an employee must be deemed admissible to the United States or be granted a waiver of inadmissibility.  Throughout the process, it may be determined that a specific employee is not eligible for a visa based on his or her individual circumstances.