The Third Preference EB-3 Professionals Holding "Advanced Degrees" or Persons of "Exceptional Ability"
The EB-3 employment based green card is for:
- Professionals who hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree;
- Skilled workers and other workers who are not seasonal or temporary and require at least two years of experience or training; and,
- Other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the US.
In order to obtain permanent residency through the EB-3 category, the applicant must have an employer willing to sponsor him or her through labor certification or PERM. The applicant must have a job offer. The applicant does not have to be employed when labor certification/PERM is filed.
All EB-3 petitions require a permanent labor certification; there are no exceptions. Labor certification/PERM is the process whereby, the US government determines whether qualified US workers can fill the open position. Once the labor certification is approved, the employer may sponsor the applicant for permanent residency ("green card").
Professionals is defined as a member of the professions who holds a baccalaureate degree. Members of the professions include, but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. It also includes any occupation for which a US baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.
Skilled workers is defined as a person, who at the time of petitioning, is capable of performing skilled labor, requiring at least 2 years training or experience, not of a temporary or seasonal nature, and for which there are no qualified workers available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.
Other Workers is defined as a person who is to perform unskilled labor, requiring less than two years training, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
Professionals and skilled workers are placed on the same waiting list for available visas; however, other workers are placed on a separate waiting list. (See discussion about the Visa Bulletin and preference categories)
Third preference workers must have a job offer and obtain a labor certification. (However, where Schedule A pre-certification applies, the foreign national will be exempt from the labor certification requirement.)
Preference Categories and Visa Number Retrogression
Under U.S. laws, there are five preference categories in which an employment-based immigrant is eligible for assignment. Statutory quotas limit the number of people who can immigrate each year depending both on the preference category in which the person is classified, and the person's country of birth. The vast majority of employment-based immigrants fall into either the second preference (EB2) or the third preference (EB3) category.
To be eligible to apply for permanent residence ("green card"), there must be a visa number available to you when you apply. Whether a visa number is available or not depends on the use of visas in your preference category, your country, the number of other applicants applying for a visa in the same preference category who have a labor certification prior to yours, and the rate at which green card applications are being processed by the government.
Your place in line is determined by your priority date, usually the date your labor certification was filed with the U.S. Department of Labor ("DOL") or, for those applications not requiring labor certification, the date a petition was filed with U.S. Citizenship and Immigration Services ("USCIS"). When more people apply in a certain category than there are visas available, the U.S. Department of State ("DOS") establishes a cut-off date, which is the priority date of the first applicant who could not be issued a visa within the numerical limits. Visa numbers are available only to those applicants with priority dates before the cut-off date. (See discussion on the Visa Bulletin)
The number of employment-based immigrant visas available each year is set by law at a minimum of 140,000. Employment-based immigrant visas are divided into the five employment preference categories. The number of visas issued in each "preference" category is limited by annual and by per-country levels.
Generally, if the demand for visas in a particular category exceeds the allotment for that category, and there are no extras available from another preference category, the category is deemed "over-subscribed," and any additional applicants in that category will have to wait in line, referred to as visa number "retrogression".
Immigrant visas are also subject to a per-country limit, set at 7% of the total annual number of family- and employment-based visas, or 25,620 per country, divided proportionally among the preference categories. A visa applicant from a country that has already used up its annual number of visas may still receive a visa if there are excess employment-based visas available that are unused by other countries.