EB-3: Is it an alternative to EB-5? - EB5Investors.com

EB-3: Is it an alternative to EB-5?

By David Hirson

EB-3 is shorthand for the third preference category of employment- based U.S. permanent residence status (“green cards”). There are five employment categories (EB-1 to EB-5) and four family based categories.

The EB-3 visa covers professional workers, skilled workers and unskilled workers. The potential immigrant who is trying to get an EB-3 green card will need a legitimate permanent, full-time job offer from a U.S. employer. The employer will need to start the process by obtaining an approved labor certification from the U.S. Department of Labor, known as the “PERM,” to confirm that the employer recruited U.S. workers for the open position, but found none who were available and qualified. A labor certification is required for all three EB-3 subcategories.

How does USCIS define professional workers, skilled workers and unskilled workers?

  • “Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent, and are a member of the profession. Employers must also demonstrate that a baccalaureate degree is the normal requirement for entry into the occupation
  • “Skilled workers” are persons whose job requires a minimum of two years of training or work experience that is not of a temporary or seasonal nature.
  • “Other workers” is the subcategory for persons performing unskilled labor requiring less than two years training or experience, not of a temporary or seasonal nature.

All three subcategories will have to show that they will be performing work for which qualified workers are not available in the U.S. A limited number of EB-3 green cards are available each year – only 40,000 in total, of which 10,000 are allotted to unskilled workers.

Any job not falling into one of the first two subcategories will probably default to the unskilled subcategory of EB-3. Occupations requiring less than two years’ training or experience are usually considered unskilled. The common categories under the unskilled category include: housekeepers, nannies, janitors, garden workers, nurse’s aides, farm workers low level restaurant jobs, etc.

What is Happening in the Market Place

EB-3 visas are in high demand many Asian countries. Specifically, on the author’s recent visits to Korea and Vietnam. in March 2016, EB-3 was on “sale” coupled with aggressive marketing programs. At trade shows, alongside EB-5 and L-1/EB-1-C, migration agents were offering job sponsorship in the US using the EB-3 program.

The concept being marketed is that various farms, franchises and other businesses have job vacancies and are willing to sponsor job applicants under the EB-3 program. Most if not all EB-3 workers being recruited under the current marketing “blitz” in Korea, Vietnam and elsewhere fall into the third subcategory of unskilled workers.

The prospective employer will process the EB-3 utilizing advertising and recruiting required for a labor certification (Program Electronic Review Management). Once the PERM is approved, the next step is to file the form I-140 with the USCIS.

The last step involves an application for an immigrant visa by the foreign national employee. The EB-3 category of the employment-based sponsorship for permanent residence is also subject to annual limits on green cards. Except for those from Mainland China, El Salvador, Guatemala, Honduras, India, Mexico and the Philippines, those with EB-3 PERM applications were filed prior to February 16, 2016 are able to apply for permanent residence in May 2016. The case will be processed for a consular interview at a U.S. consul, usually in the home country of the prospective employee. If the person is legally in the United States at the time of the approval of the I-140, an application for adjustment of status (AOS) on form I-485, if the applicant is qualified, may be filed while in the U.S.

Upon entry into the U.S., the employee will be admitted as an unconditional permanent resident. Approval of an adjustment of status case will make the employee a permanent resident immediately. The employee would then proceed to work for the sponsor company for a previously agreed term of one year or more. The law does not fix any specific term to the “permanent, full-time” position.

How the US Department of Labor Certification Works

The growing interest in immigration to the United States has some immigration agents promoting the EB-3 visa program to target clients that cannot afford the EB-5 program or wish to spend less money to immigrate. Often applicants, thinking that all is well with an approved PERM and I-140, will attend the interview only to find that the U.S. Consul has learned that the process was not conducted in accordance with the relevant laws and regulations. They are then denied their green cards on the basis of fraud.

Consuls are able to monitor trends in applications and, when they see a large number of applicants processing at their Consulate for the same position (for example, to work at a farm or in a fast food restaurant) they review all applications closely in order to determine any possible fraud.

It is common in the EB-3 unskilled worker category to find fraudulent applications. The U.S. government – through the U.S. Department of Labor, USCIS and the U.S. Department of State – can then work together to investigate the potential employer sponsoring these applications, as well as any other parties. This can include the applicants themselves. If it is determined that the positions offered are not bona fide, all permanent residence cases for that particular employer would be subject to denial.

The applicant is often unaware of the consequences of submitting a false application, but as a signatory to the immigration documents themselves, they are making an attestation to the U.S. government of the truth of the information submitted. A fraud-based denial not only prevents them from getting the EB-3 based green card, but it has the capacity to act as a bar to future entry into the US on any temporary visa or as a green card holder1.

Mandatory Recruitment Efforts

A U.S. employer looking to use the EB-3 immigration category to attract talent from abroad has several requirements to fulfill to satisfy U.S. governmental agencies.

  • A job order totaling a period of 30 days must be placed with the State Workforce Agency in the area of intended employment.
  • The employer must then run two Sunday advertisements in a newspaper of general circulation, most appropriate to the occupation in the area of intended employment.
  • The job offered must be at the prevailing wage for the occupation in the location of the job.
  • The employer must also fulfill recruitment efforts which may include the following:
    • Recruitment at job fairs;
    • Recruitment on the employer’s website;
    • Job search website other than the employer’s site;
    • On-campus recruiting;
    • Use of trade or professional organizations for recruitment;
    • Use of private employment firms;
    • Employee referral program with incentives;
    • Use of campus placement offices;
    • Use of local and ethnic newspapers;
    • Use of radio and television advertisements.

Only one of the aforementioned efforts may be conducted within 30 days of filing the PERM labor certification application, and none may take place more than 180 days prior to filing the application. Notice of the job opportunity must be posted in a clear and conspicuous location for at least 10 consecutive business days within 30 to 180 days before filing the labor certification application. In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization. The notice must explain that it is being provided because the employer is filing a labor certification.

What is Wrong with Current “Selling” of EB-3 Jobs

The way the EB-3 program is being described and offered to the public is inconsistent with the USCIS and Department of Labor laws and regulations. If EB-3 “for sale” programs intentionally circumvent the legal requirements, then they are fraudulent. The Department of Labor’s main purpose is to ensure that foreign workers do not displace U.S. workers. Only after recruitment is completed, and if the employers can show that they were not able to find qualified, able and willing domestic workers for the position, would the agency certify a PERM application.

The sponsoring employer must review and interview applicants and disclose to Department of Labor receipt of all applications. If any of these regulations are broken, the sponsoring company and all persons involved in the process can be subject to enforcement action including criminal prosecution.

The following are warning signs that applicants should be aware of when seeking an EB-3 unskilled worker position:

They are asked to pay the legal fees, advertising fees, or administrative fees associated with the EB-3 process. The U.S. Department of Labor regulations require that the employer cover all expenses in connection with the first step of the sponsorship process, which includes the legal fees, expenses, and all advertisement costs associated with the test of the labor market2. At this time, there are no exceptions to this requirement and prospective employees or third parties may not provide any reimbursement or offer to cover any portion of these costs.

Paying fees to an agent to find an EB-3 position for sponsorship. No fees can be charged to the prospective employee in connection with obtaining a position for a foreign national with a prospective employer.

Advertisements that state that the EB-3 position requires only a 12-month employment commitment. Jobs through the PERM process are required to be permanent in nature and should not have a finite completion date3.

The applicant has never spoken to the sponsoring employer, has not had any communication (written, via telephone, or email) with the employer, and was not part of an interview process. Many employers sponsor and recruit foreign nationals and those applications are valid and approvable.

The following are indicators that an EB-3 sponsorship is valid:

  • The employee is currently working with the employer overseas or in the U.S., and the employer now wants to sponsor him or her for permanent residence so that he or she can permanently retain the position with the company in the U.S.
  • The employee replied to an advertisement by the company or a recruitment agency and was interviewed by the company for the position – whether over the telephone or via e-mail. They were required to discuss their skills and experience for the position and answer questions related to the job.
  • The employee was not asked to pay any fee for the PERM application, legal costs for PERM, or to secure the position with the employer.

In summary, when an employer makes a bona fide job offer to a Vietnamese national for a position fitting into the EB-3 category, it is not unlawful to accept this offer and to allow the prospective employer cover all costs and fees of, at a minimum, the first step of the process if they are intending to fill this position permanently. But be wary of marketing materials or claims that the EB-3 program was recently adopted by the U.S. government, and requires extensive payments from the investor to fund steps of the immigration process. If a potential job’s legitimacy is in question, consult a U.S. immigration attorney. Failure to determine if a program is valid can have serious immigration repercussions for foreigners seeking permanent residence or temporary visa status in the United States.

What Can Happen if a Case is Denied

A fraudulent application can have dire consequences, including audits and investigations by U.S. government agencies such as the Federal Bureau of Investigation. It can cause administrative sanctions including fines and restrictions or bans on filing future immigration petitions or cases. Criminal prosecution including fines and jail time could be filed, and the prospective immigrant could face a lifetime ban on entering the U.S. on both nonimmigrant or immigrant visas.

A Cautionary Note and Good Practices when Considering EB-3

Make sure to follow U.S. law as written and intended, and do not try to circumvent the law or take short cuts. Once pervasive abuse of the EB-3 becomes known to the U.S. government agencies, each agency will take whatever steps in its power to stop the perceived or actual abuse.

The U.S. Congress is often slow to act, but if abuse of the law is brought to its attention, then new laws will be proposed that will make it difficult to continue the practice. This could include higher administrative and criminal sanctions. Remember, if a job or avenue of immigration looks to good to be true, it usually is!

About the Author

David Hirson is the founder of David Hirson & Partners LLP. He has been involved with EB-5 cases since the program’s inception, placing him among the most experienced active EB-5 immigration attorneys in the nation. Hirson undertakes all aspects of EB-5 work including regional center designations; advising and structuring EB-5-compliant projects; and filing individual investor cases. He regularly travels abroad and has developed relationships with top providers who source investors for EB-5 projects in each country.

1 INA Section 212(a)(6)(C)(i)

2 20 CFR 656.12

3 INA Section 203(b)(3)

David Hirson

David Hirson

David HirsonDavid Hirson, founder of David Hirson & Partners, LLP, is an EB-5 investment immigration attorney with over 30 years experience practicing immigration law.

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