EB5 Investors Magazine Volume 4 Issue 1 | Page 101

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; Continued to page 100 WWW.EB5INVESTORS.COM 99