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Third Preference Employment Based Immigration - Skilled and Professional Workers

by Gregory Siskind

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. The category has been backlogged by about six years as of mid-2005. The rest of the EB-3 category has also been backlogged recently and is expected to become more and more oversubscribed in the next few years. Consequently, applicants would be wise to begin planning early to deal with their permanent residency.

Who is considered a professional by the USCIS?

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.

Who is considered a skilled worker by the USCIS?

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 USCIS 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 USCIS 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 USCIS.

Who is considered an other worker by the USCIS?

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.

What should someone know before 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 (such as a Schedule A case for a nurse), an application for an immigrant worker may be filed along with a concurrent adjustment of status petition. The principle forms used for these petitions are the I-140 Immigrant Petition for an Alien Worker and the I-485 adjustment of status application. The forms are submitted to the appropriate regional INS Service Center along with the approved labor certification, a letter from the employer and the appropriate additional supporting documents and filing fee.

Normal petition items include documents showing that the employer has the financial resources to pay an offered wage which is at least the prevailing wage. An application must also include 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 USCIS 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.


About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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