Downgrading an approved I-140 from an EB2 to an EB3 to file an adjustment ...
The EB3 Visa is a permanent residence US visa/Green Card for “Skilled, Professional, or Other Workers.”
This employment-based visa is for those seeking to enter the United States to take up employment that requires either…
- a baccalaureate degree or equivalent,
- 2 years’ training or experience (in most cases),
- or in some cases less than 2 years’ experience in order to become proficient (defined as”unskilled”).
Family of EB3 Holder
The Green Card holder’s legal spouse may come to the U.S. via either E34 (“skilled” worker) or EW4 (“other” worker) visas. Minor children (who must be under 21 and unmarried) are typically admitted via E35 (“skilled”) or EW5 (“other” worker)
While the process of applying for permanent residency is ongoing, the spouse may apply for an Employment Authorization Document (EAD), which lets them work freely in the country.
EB3 Overview (Video)
The EB3 sets a lower standard than other Green Cards, such as the EB2, and so is less scrutinized less closely. However there is often a waiting list for approval.
Most EB3 applications cannot be adjusted from temporary (non-immigrant) visas until the petitioner’s priority date becomes current. This date is set when the Labor Certification Process is started (see below).
The employer must:
- file form I-140 with USCIS;
- establish that they can afford the offered position upon granting of the Green Card;
- prove that the beneficiary meets the necessary requirements.
The three routes to qualification are…
- Skilled Worker: The position demands at least 2 years’ relevant employment experience or training. In addition, a Labor Certification Process is required to demonstrate that no qualified workers are already available in the U.S. to fill the position.
- Professionals: The professional position in question requires a baccalaureate degree (or foreign equivalent).
- Unskilled / “Other” Workers: The third option covers jobs that can be performed with less than two years’ training. (However, temporary or seasonal jobs are excluded.)
Labor Certification Process
Each EB3 petition requires that the PERM Labor Certification process be followed.
PERM is where the U.S. Department of Labor (DOL) requires that the prospective employer test the market to establish that there are no willing or qualified workers already legally in the United States who can fill the position.
This process also requires a Prevailing Wage Determination which typically involves…
- Posting with the relevant State Workforce Agency;
- Posting an advertisement in a major newspaper on consecutive Sundays;
- Posting the job ad in a conspicuous place at the worksite and on the company’s intranet/web site;
- Plus three other recruitment processes as set out in the regulations.
It is vital that the employer conduct and record all actions carried out during this process. The employer is strongly advised to work with the advice and guidance of an experienced immigration attorney.
In certain exceptional cases (Schedule A, Group I) a petition may be submitted directly to USCIS without a labor certification. We can advise on this.