EB-3Skilled worker, professional or other worker

Overview

EB-3 (employment-based immigration, third preference) is a green card category for three groups: skilled workers, professionals, and other workers (also called unskilled workers). All three need a permanent, full-time job offer from a U.S. employer.^[2,3]

By law, EB-3 gets up to 28.6% of the yearly worldwide level of employment-based visas, plus any visas not needed by EB-1 and EB-2. Within that, no more than 10,000 visas per fiscal year may go to other workers, and a 1997 law (Pub. L. 105-100) provides for a temporary reduction of up to 5,000 a year in the visas for other workers.^[9]

The three EB-3 groups

Eligibility

Schedule A occupations do not need a DOL-approved labor certification, because DOL has already found there are not enough U.S. workers for them. Group I is professional nurses and physical therapists; Group II covers people of exceptional ability in the sciences or arts (including college and university teachers) and in the performing arts. Instead, the I-140 includes a completed, uncertified Form ETA-9089 with its appendices, a signed Final Determination and a valid prevailing wage determination.^[2]

The labor certification (PERM)

What the employer does with DOL before the I-140, under the basic process for most EB-3 jobs.

1. 1

   Prevailing wage

   The employer must get a prevailing wage determination from DOL's National Prevailing Wage Center before filing. The wage offered must equal or exceed that prevailing wage.^[1,12]

2. 2

   Recruitment and notice

   The employer tests the U.S. job market: a 30-day job order with the state workforce agency (SWA) and two print ads, generally on two different Sundays in the local newspaper, done at least 30 but no more than 180 days before filing. Professional occupations need three more recruitment steps. The employer also gives notice of the filing, between 30 and 180 days before filing, to the union for that job or, if there is none, by posting it at the work site for at least 10 consecutive business days and in any in-house media it normally uses for similar jobs.^[12,13]

3. 3

   File Form ETA-9089

   The employer files Form ETA-9089 with DOL, online through DOL's Foreign Labor Application Gateway (FLAG) or by mail. DOL certifies the application, denies it, or selects it for audit. The date DOL accepts it for processing becomes your priority date.^[1,10,13]

4. 4

   I-140 within 180 days

   A labor certification expires 180 days after DOL certifies it, and USCIS must receive the I-140 before then. If the last day falls on a Saturday, Sunday or legal holiday, USCIS accepts the petition on the next business day; after that, it rejects it.^[14]

The job must be full-time and permanent, with an employer other than you, and clearly open to any U.S. worker. You, and your agent or attorney (unless that person acts as the employer's representative), may not interview or consider U.S. applicants. If the employer is a closely held corporation or partnership in which you have an ownership interest, if you are related to its stockholders, corporate officers, incorporators or partners, or if you are one of a small number of employees, the employer must be able to show in an audit that the job is genuinely available to all U.S. workers (a bona fide job opportunity).^[12,13]

Documents for the I-140

Fees

Premium processing

Your employer can request premium processing on Form I-907. USCIS then takes action on the I-140 (an approval, denial, request for evidence or notice of intent to deny) within 15 business days of receiving the form and fees. A request for evidence or notice of intent to deny stops the clock, and a new 15-business-day period starts when USCIS receives the response. If USCIS does not take one of those actions within the timeframe, it refunds the premium processing fee and keeps processing the case, unless it has opened an investigation for fraud or misrepresentation.^[7]

Priority date and the Visa Bulletin

Your priority date is the date DOL accepted the labor certification application (for a Schedule A petition, the date the complete, signed I-140, with all initial evidence and the correct fee, is properly filed with USCIS). A visa is available when that date is earlier than the EB-3 cut-off date for your country of chargeability (usually your country of birth) in the applicable Visa Bulletin chart; "C" means current. Unless the USCIS filing-charts page says otherwise, use the Final Action Dates chart to decide when to file Form I-485; the chart below shows the current month.^[5,10]

Spouse and children

Your spouse and unmarried children under 21 may be eligible to immigrate as your derivatives (spouse: E34 or EW4; child: E35 or EW5), with you or after you, based on your approved I-140. A spouse or child acquired before you are admitted as, or adjust status to, a permanent resident qualifies, and so does a child born later of a marriage that existed by then. A spouse or child acquired after that, such as through a later marriage, is not entitled to derivative status.^[2,11,19,20]

◈High confidence If a child is close to 21, the Child Status Protection Act (CSPA) may help: the child's CSPA age is their age when a visa becomes available minus the time your I-140 was pending. A visa counts as available on the later of the I-140 approval date or the first day of the Visa Bulletin month whose Final Action Dates chart shows a visa available. The child must stay unmarried and must seek to acquire permanent residence within 1 year of that date, for example by properly filing Form I-485 or submitting Part 1 of the online immigrant visa application (Form DS-260). If the child misses that deadline, USCIS may use its discretion to treat it as met if the child shows the failure resulted from extraordinary circumstances.^[9,21]

Applying inside the U.S. (Form I-485)

◈High confidence To file Form I-485 inside the U.S., you generally must have been inspected and admitted or inspected and paroled (there are limited exceptions), be physically present when you file, and have a visa immediately available both when you file and when USCIS decides. Employment-based applicants are generally barred if they are not maintaining lawful nonimmigrant status when they file, have worked without authorization, or have not kept a lawful status continuously since entry, unless section 245(k) of the Immigration and Nationality Act (INA) exempts them or they qualify under INA 245(i). An immigration attorney can check whether an exception fits your history.^[3,22]

If a visa is immediately available, you can file Form I-485 together with the I-140, while the I-140 is pending, or after it is approved (and remains valid). If you file based on an I-140 filed earlier, include Form I-485 Supplement J to confirm the job offer; it is not needed when the I-485 goes in together with the I-140 that names you.^[3,23]

While your I-485 is pending, you may apply for a work permit (Form I-765) and for advance parole to travel (Form I-131). Leaving the U.S. without advance parole generally abandons the I-485. One exception covers applicants in lawful H-1 or L-1 status, not in removal proceedings, who return still eligible for H or L status to resume work for the same employer, with a valid H or L visa if one is required. A similar rule covers applicants in H-4 or L-2 status whose spouse or parent is maintaining H-1 or L-1 status, if they remain eligible for H-4 or L-2 status and have a valid H-4 or L-2 visa if one is required.^[3,24]

Applying from abroad

If you live outside the U.S., or live here but want to apply abroad, USCIS sends the approved I-140 to the State Department's National Visa Center (NVC). The NVC collects fees and documents and tells you when a visa number is about to become available; once it is, the consulate schedules your interview.^[4,10]

A consular officer may issue an EB-3 immigrant visa only after receiving the approved petition with the DOL labor certification (or evidence that the occupation is on Schedule A), and must first confirm that you have the qualifications the certification is based on.^[19]

Filing errors that lead to rejection

Latest I-140 statistics

Current I-140 processing time

Recent policy changes

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