DOES YOUR COMPANY QUALIFY FOR THE EB-3 VISA?

The EB-3 employment-based immigration visa requirements for the sponsor are:

• To be able to show that the employer can pay the wage offered by the time of the beneficiary visa priority date. 

• To provide documents such as an annual report, federal income tax return, or audit financial statement to demonstrate an ability to pay the wage.

• To provide a job opportunity that is permanent and full-time.

• To have a valid  federal Employer Identification Number (FEIN).

• To have a business in the United States.

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 a Prevailing Wage Determination to the Department of Labor (DOL). 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 foreign worker with DOL.

SECOND STAGE

1. After the PERM/Labor Certification has been certified by 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. USCIS can take several months to adjudicate the petition. However, upon payment of additional fees, 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 may follow one of two procedures to obtain their 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 application. 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.

ADDITIONAL SERVICES

GM INTERNATIONAL CONSULTANTS LLC, as your agent will ensure that your company and workers are in strict compliance with the Department of Labor and U.S. Citizenship and Immigration Services (USCIS) law and regulations. 

But, GMIC’s services do not finish there; we want to ensure that your new employees are set up for success right from the start. GMIC will make sure the transition or relocation is as smooth as possible for your company and the workers. 

Our services include: 

• Providing ongoing support for you and your workers during the term of their visas.

• Assisting the foreign worker the day of their interview with transportation, lodging, and meals.

• Greeting new employees at the airport and transporting them to your company headquarters.

• Providing workers with an orientation session that gives them the knowledge they need to be productive in the U.S. and a professional environment.

• Assisting workers in setting up social security numbers and opening bank accounts.

• Working with employers to coordinate temporary housing.

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. A permanent employment situation, 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.

DOES YOUR COMPANY QUALIFY FOR THE H2B VISA?

To participate in the H2B program, the employer must establish:

• There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

• Not adversely affect the wages and working conditions of similarly employed U.S. workers. 

• The employer’s job opportunity must be: Temporary, Full time and non-agricultural.

• Be an employer with a valid Federal Employer Identification Number (FEIN).

• Have a business in the United States. 

H2B APPLICATION PROCESS

1. Apply for and Receive a Department of Labor Prevailing Wage Determination.

2. Pursue certification of the requested visas through the Department of Labor.

3. Tap the local U.S. market to prove we are not displacing our local men and women.

4. Certification.

5. Petition for the requested visas from USCIS-United States Citizenship & Immigration.

6. Approval from USCIS.

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. 

DOES YOUR COMPANY QUALIFY FOR THE H2A VISA?

The general guidelines below will help you understand whether you are eligible to participate in the program:

• You must be an employer with a place of business physically located in the United States, Possess a valid Federal employer identification number (FEIN), and have the ability to hire, fire, supervise, or otherwise control the work of the workers you employ.

• The work to be performed must consist of agricultural labor or services, such as the planting, raising, cultivating, harvesting, or producing any agricultural or horticultural commodity.

• The work must be full-time, the need for the work must be seasonal or temporary.

EMPLOYER RESPONSIBILITIES

The current regulatory framework also mandates responsibilities for H2A employers, who must be aware of these responsibilities and be prepared to demonstrate compliance during an audit.

• Employers must provide housing, and it needs to meet applicable safety standards.

• Workers who live in employer-provided housing must be offered three meals per day at no more than a DOL-specified cost or provide free and convenient cooking and kitchen facilities.

• Upon completion of 50% of the job order period, provide or reimburse the cost incurred for transportation and subsistence (including lodging incurred and meals) from the worker’s country home to the place of the employment.

• H2A workers must be provided or reimbursed for all visa-related and border-crossing fees in the first workweek of employment.

• All employer-provided transportation must meet applicable safety standards.

• Provide, at no cost, all tools, supplies, and equipment required to perform the assigned duties.

• Employers must not lay off or displace similarly employed U.S. workers within 120 days before the job order through the end of the job order.

• Employers and their agents MUST NOT request or receive payment from any worker for any cost related to obtaining the H2A certification.

• No later than the first day of work or before getting the visa (in the case of H2A workers outside the U.S.). 

• H2A workers must receive accurate written information about wages, hours, working conditions, and benefits of the employment offered in a language understood by the worker. 

• H2B workers must be paid at least every two weeks at the rate indicated in the job order for all hours worked, and provide to the worker a written statement of earnings (pay stub) each period.

• Employers must guarantee employment or payment for at least 75% of the hours promised in the job order every 12 weeks period.

• Upon completion of the job order or if dismissed early for any reason, the employer must provide or pay for return transportation and subsistence (Including housing at no cost).

• The employer must provide Workers Compensation Insurance to H2A workers.

• Employers MUST comply with all other applicable Federal, State, and local laws.

The H2A visa processing time can depend on several factors, including the processing times of various governments. Generally, the whole process takes about 90 days from start to finish to complete.

The process includes:

1. Determining the most accurate job description for the work.

2. Preparing and submitting an agricultural job order to the local SWA. The SWA will review the job order and will initiate recruitment of U.S. workers.

3. Employer applying for a temporary labor certification with the Department of Labor’s Chicago National Processing Center and receiving the final determination.

4. Submitting a H2A visa petition with U.S. Citizenship and Immigration Services.

5. Workers applying for the H2A visa with the Department of State and complete consulate interviews.

6. Approving workers travel to the worksite and arriving on the start date with an arrival/departure record.

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.