The third preference category of employment-based immigration is for professionals, skilled workers, and other workers. All petitions filed in the EB-3 category require a permanent, full-time job offer and a labor certification, there are no exceptions. Each year the third preference is allotted about 40,000 visas, plus any that remain from the first and second preference categories. Eligibility requirements for the EB-3 Visa classification are less stringent than the EB-1 and EB-2 classifications; however, the EB-3 category is currently backlogged and is expected to become more and more oversubscribed in the next few years.
A professional is a person who has a baccalaureate degree (or foreign equivalent) and is a member of the professions. Unlike the H-1B nonimmigrant category, one is not able to make up for a lack of education through experience. Members of the professions include, but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. Also included are any occupations for which a U.S. baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.
For a person to qualify as a skilled worker, the position being offered must require at least two years training or work experience. The alien must possess the required training or experience, 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 USCIS regulations, whether a position involves skilled labor is determined by the U.S. Department of Labor. Because the other worker category is backlogged by approximately six years, it is very important that the employer demonstrate that the position is one requiring at least two years training or work experience. The primary issues that occur here result from conflict between the employer’s belief that the position require two years of training/work experience and the U.S. Department of Labor’s guidelines on specific vocational preparation showing the position requires less.
An “other worker” is a person filling a position that requires less than two years training or experience to perform. Relevant post-secondary education may be considered as training for the purposes of this provision. 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.
Application Procedures in the EB-3 category:
A Form I-140 (Petition for Alien Worker) must be filed with the USCIS Regional Service Center that serves the area of intended employment. Before the Form I-140 can be filed with the USCIS in the EB-3 category, the alien must first obtain a labor certification from the U.S. Department of Labor. A labor certification is a test of the U.S. labor market to determine whether qualified U.S. workers are available and willing to fill the job in question. The alien does not have to be employed when labor certification is filed. A job offer is sufficient.
Upon approval of a labor certification application, the alien may file the Form I-140 (also called the “Immigrant Visa Petition”) with USCIS. The Immigrant Visa Petition packet must be accompanied by evidence that the Petitioner has the ability to pay the proffered salary from the time the labor certification was filed until present and evidence that the alien meets the minimum requirements for the job opportunity.
Once the I-140 immigrant visa petition is approved, the alien and his/her spouse and children under 21 years of age may apply for their immigrant visas either through adjustment of status in the United States or through consular processing at a U.S. Consulate outside of the United States.