Once the class of EB-3 position is decided, next comes the Labor Certification step. With just a couple of exceptions – such as for registered nurse or physical therapist positions, a job offer in any of the above classes must be support by a U.S. Department of Labor approved Labor Certification application, also known as a PERM application. To obtain an approval on a labor certification application, the employer must first document their efforts to test the labor market and recruit for the position at issue. Importantly, the salary being offered in conjunction with the position and labor market test must be at least what is considered the “prevailing wage” by the U.S. Department of Labor. After the recruitment period, the employer must then be able to demonstrate that ready, willing and able U.S. workers were not available to fill the job offered.
If the U.S. Department of Labor approves the PERM/Labor Certification application, the employer’s next step is to file an I-140 Immigrant Petition for Alien Worker. In addition to the approved Labor Certification filing, the I-140 petition must be accompanied by various pieces of supporting documentation, including evidence of the petitioning company’s financial ability, to pay the offered wage, such as copies of recent company federal tax returns, or an audited financial statement. The petition must also be supported by proof that the petitioned worker possesses the requisite education and/or experience for the offered position.
Taking into account processing times for Labor Certification applications and I-140 petitions, and then – that just 140,000 employment based permanent, immigrant visas are available per year, the parties may end up waiting between 18 months and 4 years for final approval. This wait can fluctuate depending on the overall demand in relation to the annual supply of visas allotted by Congress. As of this writing, this processing delay is even greater when the petitioned worker is from India, China and the Philippines.
When it comes to the EB-3 immigrant visa/green card process, as is the case with pretty much all employment based green card filings, the variables are many and thus so are the ways an EB-3 filing can fail. In navigating the complicated terrain associated with EB-3 or any employment based immigration filing, an employer and their petitioned employee will be best positioned to achieve their goal when they have competent, seasoned immigration counsel on their side. By contacting Richard Hanus and the Law Offices of Richard Hanus, employers and their petitioned workers can maximize their chances of success and help keep the process as simple and straightforward as possible.