EB-2/EB-3 Based on PERM Labor Certification
EB-2 is an employment-based, second preference immigration classification for professionals holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. EB-3 is an employment-based, second preference immigration classification for skilled workers, professionals, and other workers.
The first step in applying for employment based permanent residency in the United States is to get a labor certification from the Department of Labor. Once Labor Certification is granted, the employer & the beneficiary will then file an I-140 immigrant petition and an I-485 adjustment of status petition.
In order to qualify for PERM, the employer needs to demonstrate that the position is a full-time job located in the U.S, the offered wage meets prevailing wage requirements, which means the wage must be equal to or greater than the prevailing wage for the occupation in the area of intended employment, and after the recruitment process, it is determined that no sufficient qualified, willing, and able U.S. workers are available to accept the job offer and fill the position.
To qualify for I-140, the employer must prove that it has the ability to pay and that the foreign worker beneficiary’s qualification meet the requirement set for the position.
Frequently Asked Questions
What is the purpose of recruitment?
Recruitment is a process to find out if there are not sufficient US workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment. If the PERM process yields a qualified U.S. worker, the employer is not required to hire them, but it means that the PERM application can’t be filed. If Employer concludes that there are not sufficient U.S. workers able, willing, qualified and available to accept the position, the PERM application (ETA Form 9089) will be filed.
What is the visa bulletin?
The visa bulletin can be found here. The visa bulletin changes monthly. Priority date is current when the dates shown in the “Final Action Date” chart is on or after the applicant’s priority date. If there are more immigrant visas available for the particular year than number of known applicants, the USCIS adopts the “Dates for Filing Application” chart to determine when to file the I-485. It is imperative that the I-485 be filed according to the chart that USCIS adopts. This can be checked on the website: www.uscis.gov/visabulletininfo
Do I still need H-1B after I140 is approved?
An approved I-140 does not change the applicant’s non-immigrant status. If the applicant works for the company before obtains green card, He/she must continue to maintain a valid non-immigrant status, generally the status they held prior to the approved I-140. However, approved I-140 extends H-1B ability by 3-year increments after the applicant hits the 6 year maximum.
Note that applicant is not required to work for the company while waiting for green card. He/she can hold other valid non-immigrant status and stays in the US. Or he/she can stay overseas while waiting for green card. In such cases, he/she will not go through I485, but consular processing for the last step.