ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Citizenship books & videos

The ABCs of Immigration – The Third Employment Based Preference
by Greg Siskind and Amy Ballentine

Each year 140,000 employment-based immigrant visas are available. Ten thousand of these are available to immigrant investors, the EB-5 visa category. Ten thousand are available to “special immigrants,” such as religious workers, certain employees of the US government abroad, and widows and widowers of US citizens, the EB-4 visa category. The remaining 120,000 visas are divided between the first three preferences. Forty thousand visas are available in the first preference, EB-1, which covers international managers and executives, outstanding professors and researchers, and people of extraordinary ability. Forty thousand visas, plus any that are not used in the EB-1 category, are available in the second preference, EB-2, which is available to aliens of exceptional ability and advanced degree professionals. Forty thousand visas, plus any that remain from the other two categories are available to the third category, EB-3, which is available to people with a bachelor’s degree, skilled workers, and unskilled workers. The EB-3 category is the focus of this article.

There are several requirements common to each of the first three employment based preference categories.

  • The alien must be offered a full-time, permanent position in the US (note: there are some exceptions to this requirement in the first two preference categories).
  • The Department of Labor must certify that there are no available US workers (note: there are some exceptions to this requirement in the first two preference categories).
  • The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.
All petitions filed in the EB-3 category require a job offer and a labor certification (the labor certification process is discussed in depth in a different article). Despite this common element, there are important differences between the three subgroups. Regardless of the total number of visas available in the EB-3 category, only 10,000 visas are available each year for unskilled workers. The result of this is a backlog in the “other workers” category. In February 2000, the visa cut-off date in this category is March 1, 1994.

Professionals who hold a Bachelor’s Degree

This category is available only to those who hold a US bachelor’s degree or its foreign equivalent. Unlike the H-1B nonimmigrant category, one is not able to make up for a lack of education through experience. A profession is a field entry into which requires at a minimum a bachelor’s degree. While these two requirements seem to equal the same thing, there is no requirement that the bachelor’s degree be in the field of offered employment.

Skilled Workers

For a person to qualify as a skilled worker, the position offered must require at least two years training and experience. The alien must possess the requisite background, but simply because the alien has two years of training and experience does not make it a skilled position if it does not otherwise require two years of training and experience.

Under INS regulations, whether a position involves skilled labor is determined by reference to the Department of Labor approved labor certification. Because of the backlog in the other worker category, it is vitally important that the employer demonstrate to the INS that the position does require at least two years training and experience. The primary issues that occur here result from conflict between the employer’s belief that the position does require two years and Department of Labor guidelines on specific vocational preparation that show the position requires less. Therefore this issue will be resolved before the application is submitted to the INS.

Other Workers

This category covers “unskilled labor,” defined by the Department of Labor as work that takes less than two years training or experience to perform. Because there is an annual limit of 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category. Currently this backlog is about six years.

Applying for the EB-3 Visa

After the Department of Labor has approved the labor certification, or in cases in which the Department does not need to approve a labor certification, an application for an immigrant worker may be filed. The form used for this petition is the I-140 Immigrant Petition for an Alien Worker. It is submitted to the appropriate regional INS Service Center along with the approved labor certification and a letter from the employer.

Other items that must be included with the petition are documents showing that the employer has the financial resources to pay the offered wage, which must be shown to be at least the prevailing wage. There must also be documentation that proves the position is within the preference category sought. In the EB-3 category this evidence would depend on which subclassification is sought. Such documentation can come from Department of Labor resources, or from industry standards. Finally, evidence must be submitted that the alien meets the job requirements, such as a copy of a bachelor’s degree or evidence of work experience.

If the INS approves the petition, the applicant can now pursue permanent residency by either adjustment of status in the US or by consular processing at a US Consulate in their native country. Both of these options are discussed in other articles.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues. After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM Publishing Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.coming Board as Marketing Vice Chairman and on the Council of the Law Practice Management Section. He is also a member of the Tennessee Bar Association, the Nashville Bar Association and the Memphis Bar Association. He serves on the board of the British American Business Association of Tennessee. And he serves on the Board of Directors of the Hebrew Immigrant Aid Society and on the executive boards of the Jewish Family Service agencies in Nashville and Memphis, Tennessee. He recently was named one of the Top 40 executives under age 40 in his hometown of Memphis, Tennessee.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com



• ILW.COM Home    • Jobs for immigrants    • Immigration information   
• Track your case online    • Find a lawyer    • Immigrant's shop   

Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: