Whether you are an employer who is seeking to sponsor a foreign employee for his or her permanent residency through employment or a foreign national who wishes to understand the general process of sponsorship under the EB3 category, this article is for you.

My name is Vivid Niroula and I am an immigration attorney based in Oklahoma City. As an EB3 Visa Lawyer in Oklahoma, my passion is to help people like you, both employee and employer, to navigate the rough seas of the immigration process and lessen the intimidation inherent in the system. The immigration process is complex that consists of numerous applications, forms, interviews, and multiple federal agencies. Niroula Law would love to be your EB3 visa lawyer, an immigration lawyer, and an advocate in your Green Card journey.

To sponsor an immigrant worker for an EB3 visa, first, you must determine the job description, job title, and minimum requirements for the position, then request a prevailing wage determination (PWD) from the Department of Labor, then conduct the recruitment process, then file the Perm ETA Form 9098, and finally file a Form I-140, an Immigrant Visa Petition on behalf of the worker.

After your Petition I-140 on the worker’s behalf has been approved by the USCIS, if currently in the U.S. and eligible, he or she may apply for a Green Card by filing I-485 or through a counselor processing if currently abroad.

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What is an employment-based immigrant visa EB3?

U.S. Congress has established several paths for a foreign national to qualify, apply and receive permanent residency in the U.S. Among many of these avenues to permanent residency, an employment-based Green Card is one of them, under which the government has designated five immigrant visa categories – EB1, EB2, EB3, EB4, and EB5. Every category has a limited annual visa allotment accompanied by its own set of requirements, processes, and application time-frames.

EB3 is one of the five employment-based immigrant visa categories with an annual 40,000 visa allotment, under which a U.S. employer may sponsor a foreign national for a permanent residency provided that he or she qualifies as a professional, skilled, or other worker.

What are the steps to sponsor an employee under EB3?

First, if you are an employer reading this, you must extend a full-time, permanent job offer to the foreign employee – a job offer is a first and foremost requirement in the process. Although no filings with any governmental agencies are required at this stage of the process, it’s important to note that the job description, duties, and minimum requirements must be crafted in satisfaction with the Department of Labor’s standards for labor certification.

The sponsorship process is in essence a test of the U.S. labor market to ensure that no U.S. workers are disadvantaged by your hiring of the foreign worker and that the job requirements aren’t purposefully tailored to serve the worker and keep U.S. workers out. The DOL will be on the lookout for job descriptions that conveniently align with the workers’ unique qualifications that aren’t truly necessary to perform the specific job.

As you craft the job title, requirements, duties, and responsibilities, it’s important to note whether you are sponsoring the foreign national as a professional, skilled worker, or other worker. The requirements for each category are defined under the Immigration and Nationality Act:

  • Professionals: The eligible candidate must have a bachelor’s degree from a U.S. University (or a foreign equivalent) and the degree must normally be required to enter into the occupation.
  • Skilled Workers: The eligible candidate must have at least 2 years of training, education, or work experience. If he or she has a post-secondary education, it can be considered as training.
  • Unskilled Workers(Other Workers): The eligible candidate has less than 2 years of training or work experience.

Second, you the employer must create an account on the Foreign Labor Application Gateway (FLAG) system to initiate the prevailing wage request application for the position, and file a prevailing wage request. The application is officially called the ETA-9141 and is used to calculate a prevailing wage for the position based on several factors like job title, descriptions, and requirements for the occupation. To request a prevailing wage, you must complete Form ETA-9141 and submit it to the National Prevailing Wage Center. The DOL defines the prevailing wage as “the average wage paid to the similarly employed workers in a specific occupation in the area of intended employment.”

The purpose of the prevailing wage determination is to ensure that employers are not avoiding hiring qualified U.S. workers just to hire foreigners for less compensation, therefore adversely affecting the U.S. workers and the job market. Once the DOL returns the prevailing wage determination (PWD), you must pay the employee at least the prevailing wage, or be willing to pay that amount in the future.

Third, after the prevailing wages have been determined, you must start the recruitment process to test the U.S. market. The recruitment process is exactly what it sounds like, you must advertise and announce the job offer using three mandatory methods, and additional three methods that you may choose from a list of ten options. The process is also known as the PERM process, where an employer seeking to hire a foreign national advertises to determine that there are no willing, able, qualified, and available U.S. workers, and that the foreign worker does not adversely impact U.S. workers or the U.S. job market.

The three mandatory job advertisement methods out of the total six are job order placement with the State Workforce Agency (SWA) for 30 days, two job advertisements in a Sunday newspaper that is in general circulation in the area, and posting of the notice of filing at the place of employment for 10 days. After the last advertisement has come down, you must wait for 30 during when you must continue to receive job applications. Then, you must screen every application received to see if any able, willing, qualified and available U.S. candidates are available to fill the position, and select the ones which satisfy the minimum job requirements if any. The employer must complete the recruitment process without the involvement of the foreign worker or an attorney.

Fourth, now that you have demonstrated that there are no willing, able, qualified, and available U.S. workers to fill the position, you must file the PERM ETA Form 9089, a Permanent Employment Certification. You must visit the create a PERM profile by entering information like the company name and FEIN number. The application will ask for information about the person filing the form, and details of the job including title, duties, and requirements.

You will also be asked to list the methods of recruitment used and the dates each advertisement was posted, including the name of the two Sunday advertisements. In addition, it will ask for some biographic information about the foreign worker and his or her previous work experience that qualifies the worker for the PERM.

Fifth, after the DOL certifies the PERM Form ETA-9089 and notifies you, it’s time to complete and file Form I-140, Petition for an Alien Worker with the USCIS. Please note that the Petition must be accompanied by the certified Form ETA-9089, and filed within 180 days of the PERM approval, or else the PERM approval will expire. The Form I-140 Petition is an application that you, the employer, file with the USCIS which signifies that you are sponsoring the foreign worker for a Green Card. Its primary purpose is to show that the foreign national is truly qualified for the job and that you can pay the proffered wage.

The beneficiary’s qualifications can be demonstrated by diplomas, and letters from prior employers, while the employer’s evidence of this ability to pay can be proved by annual financial reports or federal tax returns. After the USCIS approves your I-140 Petition, the filing date of the PERM Form ETA-9098 sets the priority date for the purposes of visa availability. Simply put, the priority date determines your place in line for the immigrant visa under the EB3 category.

Sixth, and lastly, after the USCIS approves your petition on behalf of the foreign worker, your job has been completed. As a final step in the Green Card process, its time for the beneficiary to apply for his or her Green Card if currently present in the U.S., or by adjusting his or her status or through consular processing at a U.S. Embassy, if living abroad. If currently present inside the U.S., the beneficiary may apply to adjust status by filing Form I-485 with the USCIS, otherwise, he or she may apply for an immigrant visa with the Department of State and give a visa interview at a U.S. Consular or Embassy.

EB3 visa lawyer Oklahoma

Most immigration processes take anywhere from several months to several years, in some instances, even exceeding decades. Although hiring an immigration lawyer cannot speed up the governmental process, you can rest assured that all filings and applicants are correctly and accurately done, reducing the chances of denials or delays. Vivid Niroula is an immigration attorney based in OKC, who is also a visa lawyer, and green card attorney who has a solid understanding of immigration laws and is dedicated to outstanding customer service and fierce advocacy. If you would like Niroula Law to represent you in your immigration case, please contact us by calling our office at (405) 456-9250, or by filling out the Contact Us Form on our website.