EB-3 Preference 

Individuals who qualify for EB-3 status are given third preference in granting permanent residency to the United States. Individuals can qualify for EB-3 status if they fit into any of the following categories: skilled workers, professionals, or unskilled workers.

Skilled Workers

An individual may qualify for EB-3 status as a skilled worker if he or she can demonstrate that they have at least two years of experience or training in their job and that he or she is performing work for which there are not qualified workers available in the United States.

The job the individual seeks to perform in the United States may be a job that generally does not require any formal education, but requires at least two years of experience. It must also be full-time and permanent, as opposed to a temporary or seasonal. Some examples of jobs that may fall into this category are technical jobs, reporters and journalists, graphic designers, or construction supervisors.

In addition to showing that the job meets the requirements, the individual must show that he or she possesses the required experience. This may be shown by proving the individual has at least two years of relevant work experience, two years of vocational training, or, although the job may not require it, that the individual has equivalent post-secondary educational training.

Because an offer of employment is required for this type of EB-3 status, the petition must be filed by an employer and an individual may not self petition.

Professionals

To qualify for EB-3 status as a professional, the applicant must show that the job to be performed requires a baccalaureate degree, that the applicant possesses a United States baccalaureate degree or its foreign equivalent, and that there are no qualified workers available in the United States.

The petitioner must show that the job the individual seeks to perform actually requires a baccalaureate degree. Moreover, the job must be full-time and permanent.

Unlike with other categories of employment-based permanent residency, EB-3 professional status requires that the individual actually possess the required degree. A showing of equivalent combination of experience and education will not suffice to meet this requirement.

Because an offer of employment is required for this type of EB-3 status, the petition must be filed by an employer and an individual may not self petition.

Unskilled Workers (Other Workers)

The unskilled workers category of EB-3 status applies to individuals who are seeking to perform a job that does not require two years’ experience. Individuals will be admitted under this category if they can show that at the time the petition is filed they are capable of performing the work and that there are no qualified United States workers.

The job that the applicant seeks to perform must be full-time and permanent.

No Qualified United States Workers

For all three categories of EB-3 status, the petitioner is required to show that there are no qualified workers available in the United States. To show this, the employer must provide proof that it made efforts to recruit United States workers and that there were no qualified applicants to the position. It enough to show that the foreign individual is more qualified than any of the United States applicants. If any United States applicant meets the minimum experience or educational requirements for the position, then this requirement for EB-3 status is not met.

The Department of Labor, however, has determined that there are some specific occupations for which the United States has a lack of qualified workers, and those occupations receive special treatment. These occupations are listed in the Department of Labor’s Schedule A, and include physical therapists, professional nurses, college and university professors, and occupations requiring exceptional abilities in the sciences, arts, and performing arts.

Occupations listed in Schedule A are given special treatment in that employers are only required to make minimal efforts to recruit United States employees before they can successfully petition for a foreign worker to receive EB-3 status. The minimal recruitment efforts require that the employer: (i) obtain a certified Form 9141 Prevailing Wage Determination; (ii) post a Notice of Filing for at least 10 business days in at least two conspicuous locations within the potential worksite; and (iii) post notice of the position in all in-house media communications for at least 10 consecutive business days. The employer is not required to make any efforts to recruit outside of its own workplace.

The Department of Labor also previously had made what it called Schedule B, which was a list of occupations that it predetermined would not qualify for EB-3 status because of an abundance of qualified United States workers. This list, however, has been eliminated, and now employers may petition for any position under EB-3 and the petition will be judged on its ability to meet the requirements.

Call us at (856) 222-0130