Skilled Workers, Professionals, and Other Worker Visas with Labor Certification: EB-2 and EB-3

Two preference levels of employment, EB2 and EB3, have beginning steps prior to being able to file immigrant visa petitions.  These beginning steps incorporate a whole labor market test for a labor certification; unless a national interest waiver is filed for an EB2 level position or the position is listed on Schedule A where the US Department of Labor has already certified that the skilled position is underrepresented by qualified workers throughout the United States and therefore does not require labor certification.  Both EB2 and EB3 immigrant visas require the employer to complete the Form I-140, unless the applicant is self-petitioning under a National Interest Waiver EB2 petition. 

The sponsoring employer must offer a position that will not displace or take away a qualified US worker’s position, offer to pay the prevailing wage according to the job requirements and location of the position, and show ability to pay the offered wage from the time of the filing of the labor certification until the beneficiary is granted permanent residence.

The Labor Certification Application

A labor certification process shows that there are not sufficient and minimally qualified U.S. workers available to take the job in the place where the job is offered.  To attain a labor certification, an employer must seek a prevailing wage from the Department of Labor and perform a series of action to make a market test in order to establish that there are no able, willing, and qualified US workers who will accept the job offered.  US worker does not mean US citizen, so the employer must be cautious as to how the market test is performed and how the review of applicants is performed.  USCIS requires the labor certification to be granted by the DOL prior to the filing of an immigrant petition, on Form ETA-9089, and the original certified labor certification, signed by both employer and beneficiary, must typically be submitted with the immigrant petition, unless certain circumstances are present.

To initiate a labor certification, the employer must follow the Code of Federal Regulations in performing the market test. Prior to filing the ETA-9089, the employer must register with the Department of Labor. Then, once the employer performs the market test, verifies that no minimally qualified US workers are available or interested in the position, and submits the ETA-9089, the DOL sends a questionnaire via email to the employer to verify the employer’s interest and compliance with submission of the request for labor certification. Then the labor certification application goes through a review process.

Although the employer does not need to file any documentation when it submits the request for certification through the DOL’s PERM (Program Electronic Review Management) system, the employer may be audited. During audits, an employer must show the specific efforts it made in its recruiting efforts for the subject position of the labor certification, the steps of recruitment performed pursuant to the market test, and the lawful job-related reasons for rejecting candidates who applied for the position.  After review, the DOL either denies or certifies the application.  If DOL certifies the labor certification, it is certifying that there is a genuine need for the immigrant worker and that by hiring the employee it will not negatively affect US workers or wages in the employment market.  If the DOL denies the labor certification, there is an option to seek reconsideration or appeal the decision.

The labor certification process is complicated, specific to time requirements and required actions, and preparing a complete labor certification packet is essential so that if and when an audit occurs, the employer is able to respond timely.  Even after the labor certification is certified, the employer should keep a record of all recruiting efforts, layoffs, and notifications made in relation to employment opportunities in the preceding 5 years.

EB-2 Members of Professions Holding Advanced Degrees or Aliens of Exceptional Ability
INA 203(b)(2)

A member of a profession may be granted an EB2 immigrant petition if the position offered requires an advanced degree or its equivalent, and if the professional holds a master ’s degree or the equivalent in education and work experience.  What is equivalent to a Master’s degree has been the subject of many articles , USCIS memorandums, and AAO decision, but generally the beneficiary of the petition must hold either an advanced degree or a foreign degree equivalent, wherein one degree earned outside the US is determined by a credential evaluation service and USCIS to be the equivalent of a US master’s degree, or the person holds a US bachelor’s degree or foreign equivalent, plus 5 years of progressive, post degree experience in the specialty that the employer accepts to fill the position.  Typically, the employer of an EB2 classification position must perform labor certification recruitment to determine that there are no minimally qualified US workers willing and able to take the position being offered.

A member of a profession may also seek an EB2 immigrant visa if he or she holds an advanced degree or its equivalent, and due to his or her exceptional ability in Arts, Business or Sciences, the foreign person will prospectively and substantially benefit the national economy, cultural or educational interests, or welfare of the U.S., so long as he or she has a US employer seeking his or her services.  In order to be granted an EB2 under this category, the professional has to be able to prove exceptional ability by showing at least 3 of the following 6 criteria:

  1. The Professional has a degree, diploma or similar certificate from an institution of higher education relating to your field of exceptional ability.

  2. 1. The Professional has at least 10 years of full-time experience in his or her field.
  3. 2. The Professional has a license or certification to practice in his or her occupation or profession.
  4. 3. He or she has or will command a high salary or other type of payment for the professional services due to his or her exceptional ability.
  5. 4. The Professional is a member of one or more professional associations.
  6. 5. The Professional has been recognized for achievements and significant contributions to the field of endeavor.

EB-2(b) National Interest Waiver
INA 203(b)(2)(B)

The requirement for a Labor certification, certified by the Department of Labor for the advanced degree position prior to the immigrant petition, can be waived if the professional can show that waiving the requirement would further U.S. national interests. This requires a showing that the professional’s work will have substantial intrinsic merit, national impact, and benefit the national interests of the U.S.  The “national interest” exemption for a labor certification must meet criteria established through case law so that the professional seeks employment in an area or field of substantial intrinsic merit, the benefit will be national in scope – not localized or specific to one company, and the national interest would be adversely affected if a labor certification were required.  A national interest waiver petition must convince the USCIS that the unique skills and ability of the professional outweighs the inherent national interest of protecting US workers through a labor certification process.

EB-3 Skilled Workers, Professionals and Unskilled Workers
INA 203(b)(3)

EB-3 positions come in 3 categories; skilled workers, professionals, and other workers. All three require that qualified workers are not already available in the United States to perform the duties, it also requires that the applicant have a permanent full-time job offer and labor certification. These positions are as follows:

  • Skilled Worker positions: The employer must require and the beneficiary must have at least 2 years of education, experience or training.  
  • Professional positions: The employer must require and the beneficiary must have a U.S. baccalaureate degree or a foreign degree evaluated to be equivalent to a US baccalaureate degree, and the employer must show that the degree is a prerequisite to practice the profession.  The Department of Labor lists professional occupations that customarily require a bachelor’s degree or higher.  If the employer exceeds the normal requirements that DOL lists for a profession or occupation, then the employer will need to justify the requirement with business necessity documentation, if requested in an audit.

  • Other worker positions (unskilled workers):  Employer must show that the position is not temporary or seasonal in nature, and the offered job requires less than 2 years of education or training to perform duties. 

Keep in mind that although requirements for the EB-3 classification are positions that have lesser requirements in terms of education, training or skill, the EB3 classification is usually prone to longer backlogs. When looking specifically at the EB-3 skilled and professional positions or at the other worker category, the backlogs are likely due to adjustment eligibility regulations of INA §245(i) opening back up to have a new sunset date of April 30, 2001, and due to the way in which visa numbers were reduced.  However at times, the backlogs sweep forward or retrogress severely so that immigrant visa numbers become available in unpredictable ways. 

i)  Since the EB2 classification is based on positions requiring  education and experience higher than the EB3 requirements, the typical immigrant wants to placed into the highest classification as possible.  However, there is a hierarchy and numerical limit for immigrant visa numbers according to per country limits, and due to the limited number of employment based immigrant visa number for countries of high immigration to the US, there have been times when the EB3 classification backlog is shorter than the EB2 classification backlog.

ii)  See the most recent Department of State Visa Bulletin for more information on immigrant visa number availability and percentages.


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