For foreign nationals seeking permanent residency (Green Card) in the United States through employment, one of the most common routes is the EB-3 green card process. However, before an employer can sponsor an employee under the EB-3 category, they must first undergo a complex process known as labor certification. This blog breaks down the key elements of labor certification, explains what EB-3 is, and walks through the critical steps in obtaining labor certification, from determining the prevailing wage to waiting for the visa bulletin to become current.
1) What is Labor Certification?
Labor certification is a crucial step in many employment-based immigration processes, including the EB-3 visa category. It is a certification provided by the U.S. Department of Labor (DOL) that verifies:
- No qualified U.S. workers are available to fill the position for which the foreign worker is being hired.
- The hiring of the foreign worker will not negatively impact the wages or working conditions of similarly employed U.S. workers.
In essence, labor certification ensures that U.S. employers are not displacing domestic workers by hiring foreign nationals at lower wages or under unfair conditions. The labor certification process is managed under the Program Electronic Review Management (PERM) system, which standardizes the application and approval process.
2) What is EB-3?
The EB-3 visa is a third-preference employment-based immigration category for foreign workers. It is aimed at three groups of workers:
- Skilled workers. Individuals with at least two years of experience in a specific field or relevant training.
- Professionals. Individuals holding at least a U.S. bachelor's degree or its foreign equivalent.
- Unskilled workers. Individuals who can perform labor for which no specific experience or education is required, provided U.S. workers are not available.
Among all employment-based green card categories, EB-3 has historically been one of the most utilized due to its flexibility. However, because it is third-preference, it often has a longer waiting period than higher-preference categories (like EB-1 and EB-2), particularly for individuals from countries with high demand, such as India and China.
EB-2 v. EB-3
EB-2 is for individuals with an advanced degree, exceptional ability, or those eligible for a National Interest Waiver (NIW). It generally requires higher qualifications.
EB-3 has more relaxed eligibility criteria, allowing skilled workers, professionals with a bachelor’s degree, and unskilled workers with limited education or experience to apply.
The main difference between Eb-2 and Eb-3 is that usually, Eb-2 tends to be quicker, especially for people born in China or India. However, for most other countries, there is not a significant difference in processing times between Eb-2 and Eb-3. You can check the visa bulletin here for an estimate of the current wait times and scroll to the employment-based chart and find “Eb-3”.
Steps in the Labor Certification Process
Navigating the labor certification process can seem daunting due to the numerous steps and timelines involved. Below is a breakdown of the key phases:
Step 1: Determining the Prevailing Wage
The first step in labor certification is to obtain a prevailing wage determination from the Department of Labor. The prevailing wage is the average wage paid to similarly employed workers in the same geographic area for a particular occupation. Employers must offer the foreign worker a wage that is at least equal to the prevailing wage, ensuring that they are not undercutting the U.S. labor market.
Employers submit a request to the DOL for the prevailing wage determination, which typically takes several months to process. The wage determination serves as a foundation for the rest of the labor certification process.
The prevailing wage determination (PWD) is a key component of the labor certification process, ensuring that the wages offered to foreign workers meet or exceed the standard wage rates for similarly employed U.S. workers in the same geographic location. The DOL is responsible for determining the prevailing wage, using several factors and data sources. Here's how the process works:
1) Job Description and Requirements
The first step in determining the prevailing wage involves submitting a detailed job description to the DOL. The employer must provide:
- Job title and a detailed description of the job duties.
- The level of experience, training, and education required for the position.
- Any special skills or certifications needed.
- The location where the work will be performed.
The DOL uses this information to match the job to an appropriate occupational classification within their wage data.
2) Occupational Classification (SOC Code)
The DOL uses the Standard Occupational Classification (SOC) system to classify occupations based on job duties and qualifications. The SOC code corresponding to the position’s job duties and requirements is chosen. The SOC system groups similar job functions into categories, and each category has a corresponding wage level.
For example, a software engineer position might fall under the SOC code for "Software Developers, Applications" (15-1132).
3) Geographic Location
Wages can vary significantly depending on where the job is located. The DOL considers the specific geographic location where the work will be performed, since wages in metropolitan areas may be higher than in rural regions. The employer must provide the exact location of the job, including the city and state, which is then matched to wage data for that area.
4) Wage Data from the OES Survey
The primary data source used by the DOL to determine prevailing wages is the Occupational Employment Statistics (OES) survey conducted by the Bureau of Labor Statistics (BLS). The OES survey collects wage data for over 800 occupations across various industries and geographic locations in the United States. This data is updated annually.
The OES survey provides the average wage for each occupation at different experience levels and across various regions. The DOL uses this data to establish a wage level based on the job classification and location.
5) Wage Levels
The DOL assigns a wage level based on the job's complexity, required experience, education, and supervision needed. There are four wage levels, corresponding to different levels of experience and responsibility:
- Level 1 (Entry-level). For positions requiring basic skills or those that involve close supervision. This level applies to jobs requiring little to no experience, typically for recent graduates or workers in training positions.
- Level 2 (Qualified/junior). For positions that require some experience and moderate supervision.
- Level 3 (Experienced). For positions requiring advanced skills, significant experience, or management responsibilities. This is typically for mid-level employees with substantial experience and independent responsibility.
- Level 4 (Highly experienced). For positions requiring a high level of expertise, advanced education, or senior management responsibilities.
The wage level assigned will determine where on the wage scale the job falls.
6) Requesting a Prevailing Wage Determination
Employers or their legal representatives submit a Prevailing Wage Request (Form ETA-9141) to the DOL through the FLAG (Foreign Labor Application Gateway) system. The DOL then uses the information provided in the request (job duties, requirements, location, etc.) to determine the prevailing wage.
The process can take anywhere from several weeks to several months, depending on processing times at the DOL. The employer will receive an official wage determination, which will be valid for a specific period (usually 90 days).
The prevailing wage determination is a key step in the labor certification process. A wage that comes out too high may cause the employer to re-start the process. A wage too low with too few qualifications makes the position too open to other available workers, which may not be suitable for the employer and their employment needs. Therefore, a skilled immigration lawyer will balance the needs of the company with the skills and experience of the proposed employee.
Step 2: Recruitment
Once the prevailing wage is determined, the employer must conduct a good faith recruitment effort to find qualified U.S. workers for the position. This includes:
- Posting the job in at least two Sunday editions of a major newspaper in the local area.
- Advertising the position with the state's workforce agency.
- Posting the job internally at the company and other industry-appropriate venues.
The goal of recruitment is to determine whether any qualified U.S. workers are available for the role. If a qualified U.S. worker applies, the employer cannot proceed with the labor certification for the foreign worker. The recruitment period must last a minimum of 30 days, followed by a 30-day “quiet period” before the employer can file for certification.
It is important to note that the employer should keep detailed notes of all employment inquiries, and document why each and every candidate was disqualified. For example, if a candidate applied, but did not have the requisite experience or educational background, the reason should be documented in case of a DOL audit.
Step 3: Filing ETA Form 9089
If the recruitment efforts are unsuccessful in finding qualified U.S. workers, the employer can proceed to file ETA Form 9089 with the DOL. This form is the formal application for PERM labor certification and includes details about the employer, the foreign worker, the job being offered, and the recruitment efforts made.
The DOL will review the ETA 9089 application to ensure that the employer has adhered to all regulatory requirements and that the foreign worker is being offered fair wages and conditions. If the application is approved, the labor certification is granted.
DOL Audit
A DOL audit in the context of the labor certification process (PERM) occurs when the U.S. Department of Labor decides to review an employer's PERM application more closely. The audit process is designed to ensure that employers are complying with the regulations set forth in the labor certification process and that they are genuinely seeking to hire a foreign worker only after having made a good-faith effort to recruit U.S. workers. The DOL uses audits to confirm that the labor market is protected and that foreign workers are not being hired in violation of the rules designed to safeguard U.S. workers' wages and working conditions.
There are two types of DOL audits: random audits and targeted audits. Random audits are part of the DOL’s quality control measures and can happen to any employer applying for labor certification. Targeted audits, on the other hand, are triggered by specific red flags in an application, such as vague job descriptions, an unusually low number of U.S. applicants during recruitment, foreign language requirements or discrepancies in the job requirements. Employers with a history of compliance issues or those who have previously been denied certification are also more likely to be subject to an audit.
When an employer receives notice of an audit, they are typically required to provide detailed documentation supporting their PERM application. This includes recruitment records, evidence of good-faith efforts to hire U.S. workers, job postings, and proof of the prevailing wage determination. The employer must submit these documents within a set timeframe (usually 30 days). If the employer fails to respond adequately, the PERM application may be denied or, in extreme cases, the employer may be barred from filing future labor certifications.
A DOL audit does not necessarily mean the PERM application will be denied, but it can significantly delay the process. Depending on the findings, the DOL may approve the certification, request additional documentation, or issue a denial. Employers should be diligent in keeping accurate and detailed records throughout the labor certification process to prepare for the possibility of an audit.
Step 4: Filing the I-140 Petition
Once the labor certification is approved, the employer can file the I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS). This step confirms that the employer intends to hire the foreign worker, and the foreign worker meets the job's qualifications.
The I-140 filing also determines the worker's priority date—the date that will be used to determine when they can apply for a green card based on the visa bulletin although the priority date is pulled from the date the ETA 9089 was filed.
What is the Ability to Pay Requirement?
The ability to pay requirement ensures that the sponsoring employer has the financial capacity to pay the offered wage (at least equal to the prevailing wage) to the foreign worker from the priority date of the application onward. This requirement is in place to protect both the U.S. labor market and foreign workers, ensuring that they are paid a fair wage and that employers are financially sound enough to meet their obligations.
USCIS evaluates the employer’s ability to pay the offered wage based on financial documentation, which the employer must submit with the I-140 petition.
How is Ability to Pay Demonstrated?
Employers can demonstrate their ability to pay using three primary methods. They need to meet only one of the following criteria for each year from the priority date (the date the labor certification is filed or the date the I-140 is filed, if no labor certification is required):
1) Net Income
If the employer’s net income (as shown on the tax return) is greater than or equal to the offered wage, USCIS will accept this as proof of the ability to pay. The employer must provide their federal income tax returns (Form 1120 or 1065 for corporations and partnerships, or the appropriate form for sole proprietorships) for the relevant years.
2) Net Current Assets
If the employer’s net income is not sufficient to meet the wage requirements, they can also demonstrate ability to pay through net current assets. Net current assets refer to the company’s liquid assets that could be used to cover the wage, such as cash, receivables, and inventory, minus current liabilities. The employer can use their balance sheet or tax return to show their net current assets are sufficient to cover the offered wage.
3) Wages Already Paid to the Foreign Worker
If the employer is already paying the foreign worker a wage that meets or exceeds the offered wage, this can serve as sufficient evidence of ability to pay. The employer must provide payroll records or W-2 forms as proof. If the worker is currently receiving less than the offered wage, the employer can show they have the capacity to pay the difference through their net income or net current assets.
What Financial Documents Are Submitted?
To demonstrate the ability to pay, employers typically submit one or more of the following:
- Federal tax returns for each year from the priority date onward.
- Audited financial statements, if tax returns are not available.
- Annual reports with financial data, if relevant.
- Payroll records (e.g., W-2s or pay stubs) for the foreign worker, if applicable.
Special Considerations for Larger Employers
USCIS sometimes applies more relaxed scrutiny for large, well-established companies (often those with 100 or more employees). If the company can provide a letter from its Chief Financial Officer (CFO) or other authorized personnel attesting to the company’s ability to pay, USCIS may accept this as sufficient proof, reducing the need for detailed financial records. However, USCIS retains discretion to request additional evidence if needed.
New USCIS Policy Regarding Ability to Pay
USCIS issued updated guidance on how it assesses an employer's ability to pay the proffered wage in employment-based immigrant visa petitions (EB-1, EB-2, EB-3). When a sponsored worker changes employers under the AC21 Act while their I-140 petition is pending, USCIS evaluates the original employer's ability to pay only until the I-140 filing date. This guidance clarifies existing policies and aims to streamline the process for adjustment of status applicants. The new rules apply to petitions filed after January 5, 2024. Therefore, USCIS will only look to the company’s ability to pay as of the date of the filing of the I-140, not the date the applicant seeks adjustment of status.
Common Issues with Ability to Pay
Some challenges employers face in meeting the ability to pay requirement include:
- Small or new businesses: Startups or small businesses often struggle to show sufficient net income or assets. They may need to be creative in demonstrating future financial growth or provide additional supporting documents.
- Fluctuating profits: If an employer has years where profits are significantly lower or they have net losses, they may face difficulty proving ability to pay for those specific years. However, future financial health and assets may still help overcome these challenges.
Demonstrating the ability to pay the offered wage is a critical aspect of the I-140 petition process, and it requires employers to provide concrete financial evidence. Employers should maintain careful financial records and work closely with immigration attorneys to ensure they meet these requirements throughout the green card process. As a practical matter, it is always important to discuss the company’s current financial situation and projected finances with an immigration attorney at the start of this process, to avoid any surprises that may negative effect this process.
Step 5: Waiting for the Visa Bulletin to Become Current
After filing the I-140, the foreign worker must wait for their priority date to become current before they can proceed with the final step—filing for adjustment of status (I-485) or going through consular processing if outside the U.S. The Visa Bulletin, published monthly by the U.S. Department of State, shows the priority dates for different categories of employment-based visas and for different countries.
For EB-3 workers from countries with high demand, such as India or China, the wait times can be quite long due to annual visa caps and oversubscription. Once the worker’s priority date becomes current, they can complete the process and receive their green card.
Once the Visa Bulletin Becomes Current and Adjustment of Status
When an individual's I-140 priority date becomes current, they can file for Adjustment of Status (Form I-485) if they are already in the U.S and in valid lawful status. This allows them to transition from a temporary visa to permanent residency (green card holder) without leaving the country. The I-485 filing should include supporting documents like medical exams, proof of lawful status, and evidence of the employer’s continuing job offer. Additionally, applicants may request Employment Authorization (EAD) and Advance Parole for travel while their application is processed.
Consular Processing If Outside the United States
When the I-140 priority date becomes current and consular processing is chosen, the applicant must complete several steps to obtain a green card through a U.S. embassy or consulate abroad.
First, the National Visa Center (NVC) will notify the applicant that their priority date is current, and they must submit civil documents, pay fees, and fill out the DS-260 Immigrant Visa Application. Afterward, an interview is scheduled at the consulate, where the applicant must present required documents and undergo a medical exam. If the interview is successful, the visa is granted, and the applicant can enter the U.S. as a permanent resident.
This process is often used by individuals residing outside the U.S. or those who prefer not to adjust their status within the U.S.
Conclusion
The EB-3 labor certification process is intricate, involving several stages that require precise attention to detail. Employers and foreign workers must adhere to various DOL and USCIS regulations to ensure success. From determining the prevailing wage and conducting recruitment to filing ETA 9089 and I-140 petitions, each step is designed to protect U.S. labor while allowing foreign workers to fill necessary roles.
While the journey can be long, especially when waiting for the visa bulletin to become current, a successfully navigated EB-3 labor certification process can ultimately lead to a permanent and rewarding future in the U.S.
If you are considering pursuing an EB-3 visa or sponsoring a foreign worker, it is highly recommended to work with experienced immigration attorneys and professionals to ensure a smooth process.