Any job not falling into one of the first two subcategories
will probably default to the unskilled subcategory of EB-3.
Occupations requiring less than two years’ training or experience
are usually considered unskilled. The common categories under
the unskilled category include: housekeepers, nannies, janitors,
garden workers, nurse’s aides, farm workers low level restaurant
jobs, etc.
What is Happening in the Market Place
EB-3 visas are in high demand many Asian countries.
Specifically, on the author’s recent visits to Korea and Vietnam
in March 2016, EB-3 was on “sale” coupled with aggressive
marketing programs. At trade shows, alongside EB-5 and L-1/
EB-1-C, migration agents were offering job sponsorship in the
US using the EB-3 program.
The concept being marketed is that various farms, franchises
and other businesses have job vacancies and are willing to
sponsor job applicants under the EB-3 program. Most if not all
EB-3 workers being recruited under the current marketing “blitz”
in Korea, Vietnam and elsewhere fall into the third subcategory
of unskilled workers.
The prospective employer will process the EB-3 utilizing
advertising and recruiting required for a labor certification
(Program Electronic Review Management). Once the PERM is
approved, the next step is to file the form I-140 with the USCIS.
The last step involves an application for an immigrant visa
by the foreign national employee. The EB-3 category of the
employment-based sponsorship for permanent residence is also
subject to annual limits on green cards. Except for those from
Mainland China, El Salvador, Guatemala, Honduras, India,
Mexico and the Philippines, those with EB-3 PERM applications
were filed prior to February 16, 2016 are able to apply for
permanent residence in May 2016.
spend less money to immigrate. Often applicants, thinking that
all is well with an approved PERM and I-140, will attend the
interview only to find that the U.S. Consul has learned that the
process was not conducted in accordance with the relevant laws
and regulations. They are then denied their green cards on the
basis of fraud.
Consuls are able to monitor trends in applications and,
when they see a large number of applicants processing at their
Consulate for the same position (for example, to work at a farm
or in a fast food restaurant) they review all applications closely in
order to determine any possible fraud.
It is common in the EB-3 unskilled worker category to find
fraudulent applications. The U.S. government – through the
U.S. Department of Labor, USCIS and the U.S. Department
of State – can then work together to investigate the potential
employer sponsoring these applications, as well as any other
parties. This can include the applicants themselves. If it is
determined that the positions offered are not bona fide, all
permanent residence cases for that particular employer would be
subject to denial.
The applicant is often unaware of the consequences of
submitting a false application, but as a signatory to the immigration documents themselves, they are making an attestation to
the U.S. government of the truth of the information submitted.
A fraud-based denial not only prevents them from getting the
EB-3 based green card, but it has the capacity to act as a bar to
future entry into the US on any temporary visa or as a green card
holder1.
Mandatory Recruitment Efforts
A U.S. employer looking to use the EB-3 immigration category
to attract talent from abroad has several requirements to fulfill to
satisfy U.S. governmental agencies.
The case will be processed for a consular interview at a U.S.
consul, usually in the home country of the prospective employee.
If the person is legally in the United States at the time of the
approval of the I-140, an application for adjustment of status
(AOS) on form I-485, if the applicant is qualified, may be filed
while in the U.S.
•
A job order totaling a period of 30 days must be placed
with the State Workforce Agency in the area of intended
employment.
•
Upon entry into the U.S., the employee will be admitted as an
unconditional permanent resident. Approval of an adjustment
of status case will make the employee a permanent resident
immediately. The employee would then proceed to work for the
sponsor company for a previously agreed term of one year or
more. The law does not fix any specific term to the “permanent,
full-time” position.
The employer must then run two Sunday advertisements in
a newspaper of general circulation, most appropriate to the
occupation in th e area of intended employment.
•
The job offered must be at the prevailing wage for the
occupation in the location of the job.
•
The employer must also fulfill recruitment efforts which
may include the following:
How the US Department of Labor
Certification Works
The growing interest in immigration to the United States has
some immigration agents promoting the EB-3 visa program to
target clients that cannot afford the EB-5 program or wish to
- Recruitment at job fairs;
- Recruitment on the employer’s website;
- Job search website other than the employer’s site;
- On-campus recruiting;
- Use of trade or professional organizations for
recruitment;
- Use of private employment firms;
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