WHAT IS THE EB-3 VISA?

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. 

As we mentioned before, The EB-3 immigration category has three subcategories:

• Professionals: Must demonstrate that a baccalaureate degree is a normal requirement for entry into the occupation. Education and experience may not be substituted for a baccalaureate degree.

• Skilled Workers: Must be able to demonstrate at least 2 years of job experience or training.

• Other Workers: Must be capable, at the time the petition is filed by the sponsoring employer, of performing unskilled labor (requiring less than 2 years training or experience) that is not of a temporary or seasonal nature, for which qualified workers are not available in the U.S. unskilled workers are limited to no more than 10,000 visas per year. 

Some of the highlights of the EB-3 category include: 

• Permanent residence to the worker in the U.S. for 10 years.

• Ability to travel freely.

• The EB-3 visa holder may apply for dependent visas for his/her spouse or unmarried children under age 21.

EB-3 APPLICATION PROCESS

The steps involved in the EB-3 process can take varying amounts of time:

FIRST STAGE

1. U.S. employer must define the duties and minimum requirements of the permanent position offered to the foreign national.

2. Submit to the Department of Labor (DOL) a Prevailing Wage Determination. DOL will determine the minimum wage that the sponsoring employer must pay the foreign national.

3. DOL requires the employer to test the U.S. labor market by advertising its position and making it available to U.S. workers. The purpose of this stage is for the employer to determine that no qualified, willing U.S. workers were found for the position offered. 

4. After the recruitment effort ends, the employer can file a Labor Certification application for the worker. It may take the DOL several months (6-8 months) to adjudicate the PERM application. DOL can certify, deny or audit the PERM. 

SECOND STAGE

1. After the PERM/Labor Certification has been certified by the DOL, the second step is for the employer to file the Immigrant Petition (I-140) with USCIS. The purpose of the petition is to prove that the foreign national is qualified to fill the position as well as to prove that the employer has the financial ability to pay the proffered wage to the foreign national. USICS can take several months to adjudicate the petition. However, upon payment of additional fee, USCIS can adjudicate the petition via Premium Processing within 15 calendar days.

2. USCIS may approve or deny the petition or it may request more information (RFI). In that case, the employer needs to present additional evidence to support the eligibility.

THIRD STAGE

The final step in the process happens after USCIS approves the I-140 petition. The foreign worker can follow two different procedures to get the Green Card:

a) If the worker is already in the United States with a valid status and an immigrant visa is available, he/she can file an Adjustment of Status. The foreign worker can apply for employment authorization (I-765) and work while the case is pending.

b) If the foreign professional is not in the United States, he/she applies for an EB-3 immigrant visa at a U.S. Consulate abroad once a visa is available.

WHAT IS THE H2B VISA?

The H2B non-agricultural program is for temporary workers and permits employers who meet the program requirements to hire non-immigrant workers based on the employer’s temporary need.

The employer applicant must establish that its need is temporary in nature. 

To be considered temporary, the need must be established as one of the following:

• One-time Occurrence. An employment situation that is permanent but a temporary event of short duration has created the need for temporary workers.

• Seasonal Need. The need is traditionally tied to a season of the year by an event or pattern.

• Peak-load Need. The employer needs to temporarily supplement its permanent staff at the place of employment due to seasonal or short-term demand.

• Intermittent Need. The employer has not employed full-time workers to perform the service, and it occasionally needs temporary workers to perform the service for short periods. 

The program has a statutory numerical limit (or cap) on the number of foreign nationals who may be issued an H2B visa during a fiscal year. Congress has set the H2B cap at 66,000 per fiscal year:

• 33,000 for workers who begin employment in the first half of the year from Oct 1 to March 31, 

• 33,000 workers for the second half of the fiscal year, from April 1 to September 30.

H2B petitions may only be approved for nationals of countries that the secretary of Homeland Security has designated with the concurrence of the Secretary of State’s office, as eligible to participate in the H2B program.

H2B APPLICATION PROCESS

The process includes:

 1. Establish the company’s need, by submitting the following to GMIC: 

• Monthly Payroll records for the prior two or three years.
• Monthly Sales records for the prior two or three years.
• Sales projections for the following twelve months. 

2. Submit a request to the Department of Labor (DOL) the current salary of the position to be filled. The DOL will issue the determination based on the counties or localities specified in the application and the nature of the job duties. 

3. Demonstrate to the Department of Labor that the company has a temporary need and is not displacing local job seekers through local recruitment. 

4. Once the DOL determines there are not enough U.S. workers capable, willing, and qualified to do the job, it will issue a Temporary Labor Certification (TLC); This TLC will be submitted along with a petition to USCIS requesting the final employer’s H2B approval. 

5. After USCIS approves the employer’s application, prospective H2B workers must apply for a visa to the United States Department of State at an Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP).

The entire process takes approximately 5 months.

WHAT IS THE H2A VISA?

The H2A agricultural program is for temporary workers and permits employers who meet the program requirements to hire non-immigrant workers based on the employer’s temporary needs. The employer applicant must establish that its need is temporary in nature. 

Depending on the type of work you need, TEMPORARY or SEASONAL agricultural work can happen on farms, plantations, ranches, nurseries, ranges, greenhouses, orchards, or other similar locations.

• Seasonal work is when you need more help than usual because the work is tied to a certain time of the year by an event or pattern, like a short annual growing cycle.

• Temporary work lasts no longer than 10 months. If you have been affected by a strike, work stoppage, or layoff within 60 days of when work will start, you may not qualify for the program. 

IMPORTANT NOTES

• Foreign agricultural workers temporarily admitted into the United States on H2A visas are exempt from U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H2A visa.

• Compensation paid to H2A agricultural workers for services performed in connection with the H2A visa is not subject to mandatory withholding of U.S. federal income tax backup withholding applies.

• The employer can withhold federal income tax only if both the H2A agricultural worker and the employer agree to withhold.

• If the H2A worker quits the job or is terminated, the employer must notify GMIC, DOL, and USCIS; after notification, the employee’s visa is canceled. He/she may be forever barred from the H2A program.

• The employer must keep H2A’s documents and files for a minimum of three years after the Department of Labor’s approval in the event that an audit is required.