EB-2 & EB-3 Green Cards

You may be eligible for an EB-2 (employment-based, second preference) green card if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. To qualify under the advanced degree designation, the job you apply for must require an advanced degree (masters or higher) and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

You may be eligible for an EB-3 (employment-based, third preference) green card if you are a Skilled Worker, Professional, or Other Worker.

• Skilled Workers are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature
• Professionals are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and who are a member of the professions
• The Other Workers subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

Green Card Process

There are three steps to the Green Card process for EB-2 and EB-3 cases.

1. Testing of the U.S. Job Market

Both EB-2 and EB-3 green cards require an applicant to undergo the PERM process or Labor Certification, which is a testing of the U.S. job market. The purpose of the PERM process is for an employer to prove that a U.S. worker is unavailable for the offered position.

Effective March 28, 2005, the U.S. Department of Labor (DOL) implemented a procedure for applying for permanent labor certification – the Program Electronic Review Management process (PERM process). A permanent labor certification issued by the DOL allows an employer to hire a foreign worker to work permanently in the United States. This is a prerequisite of many employment-based green card petitions.

The PERM process requires the petitioning employer to conduct a series of recruitment activities to test the current U.S. job market before filing the application. If no qualified and willing U.S. worker (U.S. citizen or Permanent Resident) is found through the recruitment process, the employer can submit the PERM Labor Certification to the DOL.

An employer must run a recruitment campaign within 30-180 days before the filing of the PERM application. The employer is required to place:

• two print ads in a Sunday newspaper of general circulation;
• one ad in professional journal;
• one ad on employers internet site;
• one ad on job search web sites;
• one ad on state job bank for 30 days;

Advertisements cannot be tailored to an applicants background and must contain the general minimum requirements for the position. Applicants must be carefully screened and contacted if they meet the minimum requirements. A detailed recruitment report must be kept on file.

In addition, the Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department’s regulations require that the wages offered to a foreign worker must meet the prevailing wage rate for the occupational classification in the area of employment. To confirm this figure, the employer is required to submit a request to the DOL for a Prevailing Wage Determination (PWD). The current processing timeline for the PWD is about 4 months.

Timeframe and costs for this step:

• Processing times: 3-6 months for the PWD/recruitment campaign + 9 months for DOL processing = 12-15 months (roughly).
• There is no charge for the filing of the PERM with the DOL.
• Costs for required advertising will vary according to the specific advertising source and location. An employer is required to pay these costs.

2. Filing a Form I-140 Immigrant Petition with USCIS

Once the PERM application is certified by the DOL, a a Form I-140 Immigrant Petition can be filed with U.S. Citizenship and Immigration Services (USCIS). Among other details, this petition requires proof of PERM certification, information about the employer (including its ability to pay the proffered wage to the applicant), evidence that the applicant holds a qualifying advanced or professional degree, and evidence that the applicant has gained specific skills required of the position.

Premium Processing service is available for EB-2/EB-3 Form I-140 petitions. Under the Premium Processing Service, USCIS guarantees petitioners that a government response will be issued within 15 calendar days of receipt.

Timeframe and costs for this step:

• Regular Processing: response on the petition in 6-12 months depending on government processing times (varies) and location of service center. USCIS filing fee of $700.00 is required.
• Premium Processing (optional): response on the petition in 15 business days with an additional fee.

3. Immigrant Visa Processing or Adjustment of Status

The final step of the green card process is asking the government to create the physical green card for the applicant based on the Form I-140 Immigrant Petition approval. There are two ways to do this. Adjustment of Status is a procedure that allows an applicant to become a lawful permanent resident without having to attend an immigrant visa interview outside the U.S. By contrast, with Immigrant Visa (Consular) Processing, the immigrant visa interview takes place at an Embassy or Consulate outside the U.S. that has jurisdiction over the beneficiary. Both methods of filing have advantages and disadvantages, and a decision should be made based on the applicant’s residence at the time of filing, status in the U.S., future travel and work plans, and the applicants preference for processing.

However, before either process can begin, it must be determined if a visa number is available. The U.S. has placed legal limits on the number of foreign nationals who may immigrate permanently each year. These limits apply to employment-based (EB), family based (FB) and diversity lottery categories (DV). The information needed to determine the availability of a visa number for a particular type of case can be found in the charts published in the Department of States Visa Bulletin each month. Berardi Immigration Law will assist in this complex analysis and confirm the filing strategy.

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