EB-3 Skilled, Professional Workers

Skilled Workers

Foreign nationals who qualify for job opportunities that require a minimum of two years of training or experience that is not seasonal nor temporary may be eligible for EB-3 Skilled Worker immigration visa, if other EB-3 criteria are met.  The applicants must meet the education, training, and experience required by the job opportunity.

Professional Workers

Foreign nationals who qualify for job opportunities that require at least a baccalaureate degree from a U.S. educational institution or foreign equivalent degree and are member of a profession may be eligible for EB-3 Professional Workers immigration visa, if other EB-3 criteria are met.  Education credentials that do not lead to a baccalaureate degree nor any combination of education and experience may be substituted for this baccalaureate degree requirement. Simply holding a baccalaureate degree does not satisfy EB-3 Professional Worker eligibility qualification, if the job opportunity used to sponsor the immigration petition application does not require such a degree.

It is also important to note that holding of a baccalaureate degree in and of itself would not qualify a foreign national for EB-3 Professional Worker immigration visa petition.  The foreign national must be a member of a profession (an engineer, nurse, an accountant) and the degree in question that the foreign national holds must be of the type that is usually required for the occupation that he/she holds.  For example, a bachelor’s degree in Art History would not support an application for a foreign national who is being sponsored for a nurse job opportunity, even if he/she has a decade of experience working as a nurse. 

Foreign Equivalent Degree

If the foreign national holds a degree from a foreign educational institution, the classification of that degree as a “foreign equivalent” is not a forgone conclusion.  That determination is made by USCIS reviewer of the EB-3 immigration visa petition in reliance on the Electronic Database for Global Education (EDGE) that is maintained by the American Association of Collegiate Registrars and Admissions Officers. Educational systems around the world vary greatly and, at times, degrees that bear the same names as their U.S. counterparts may not require the same scope of learning or number of prerequisites, thus not qualifying as a ‘foreign equivalent’ for EB-3 immigration visa petition application purposes. An example of such discrepancy is a three-year Bachelor of Science degree from India, which generally is not recognized as an equivalent to a Bachelor of Science degree from a U.S. educational institution.  The access to the EDGE resource is available to applicants and a foreign national interested in being considered for EB-3 Professional Worker category should consult this resource to make an early determination on whether the degree that he/she holds would qualify as a baccalaureate degree equivalent  from a U.S. institution.

Another USCIS rule to consider when evaluating the issue of degree equivalency is the ‘single source’ rule.  While EDGE may support a proposition that a three year bachelor degree plus a two year post-graduate work in a foreign country is equivalent to a U.S. baccalaureate degree for college or graduate school admission purposes, it may not be adequate for purposes of EB-3 Professional Worker immigration visa petition because such equivalence was not obtained from a single source.

To pursue the EB-3 immigration visa, both the sponsoring U.S. employer and a foreign national must undertake certain specific steps to meet the prescribed requirements.

The U.S employer must demonstrate that:

• The sponsoring employer has a permanent full-time position open that requires education, skills and background that fits the qualifications of the foreign national that it desires to sponsor;
• It could not find an available, qualified, and willing U.S worker to take the job position being offered at prevailing wages and in the geographic location where the employer needs personnel; and
• The employer is financially stable and able to pay the foreign worker the prevailing wage for a foreseeable future and can afford to sponsor the foreign national through the EB-3 immigration visa petition process.
  

At the same time, the foreign national(s) needs to demonstrate that she/he/they:

• Have a valid bona fide job offer from a U.S employer;
• Have the qualifications to meet the requirements of the job being offered, including all the relevant education and experience; and
• Meet certain character and health prerequisites for entering the United States.

Labor Certification

The first step in the EB-3 visa sponsoring undertaking is preparing for and submitting supporting documentation for the Labor Certification process, managed by the DOL. In order for a U.S. employer to be able to hire a foreign national for most skilled or professional roles, the employer must first ‘test the market’ to determine whether there are any qualified U.S. workers with relevant skills, education and experience who are willing to take the position being offered in the relevant jurisdiction.  The Labor Certification determination is made by the DOL based on evidence that the U.S. employer submits about the job on offer, the specific requirements of that job, how and where the position was advertised and recruited, the U.S. workers applicant pool that is available for the job based on those who responded to recruiting solicitations.  The sponsoring U.S. employer must also demonstrate how/why those U.S. workers who applied for the position were not qualified for it as compared to foreign national’s qualifications.

How the job opportunity is advertised and how the potential U.S. worker candidates are recruited and evaluated for the position used as a basis for the Labor Certification is critical for the Labor Certification process to be successful.  The position must be advertised via major recruiting channels in the location where the worker will be expected to work, including internet job boards (e.g. Indeed, Monster.com, LinkedIn), major local newspapers, the relevant state workforce agencies, the U.S. employer’s bulletin boards and the intranet at the office or worksite where the foreign national will be expected to work, and other promotion channels, as may be required by USCIS.   All steps undertaken to advertise the job opportunity and to interview interested U.S. workers should be careful documented, and the evidence of these activities provided as part of the Labor Certification application.

In testing the market, the sponsoring U.S. employer does not have to demonstrate that there are no available workers anywhere in the United States who have the skills, education and experience to meet the qualification of the job position on offer.  The employer only must show that there are no qualified U.S. workers who are willing to take the job in the jurisdiction where they are needed.  For example, a position posted for an financial auditor in Louisville, KY may require certain education and experience that is widely available in New York City or in Pittsburgh, PA; but if the job requires for the worker to perform it in Louisville, KY and if the sponsoring U.S. employer can demonstrate that qualified U.S. applicants are not willing to relocate to Louisville, then the Labor Certification is likely to be granted. If on the other hand, qualified candidates are available in Louisville or are willing to relocate to Louisville for the job, then the DOL is not going to grant the Labor Certification as the sponsoring employer would have failed to meet the burden of proof required to receive the Labor Certification.   

For the job posting and the recruiting process to be deemed sufficient by the DOL in support of the proposition that willing and qualified U.S. skilled or professional workers are not available to fill the job being offered, the job must be offered at the prevailing wage for its location. The “prevailing wage” includes a combination of the base pay, customary benefits and overtime, if appropriate, that other skilled or professional workers make for the same job in the location where the worker would be expected to work.  The prevailing wage is determined based on extensive statistical information collected by the DOL, and for most job categories can be accessed from the DOL’s Foreign Labor Certification Data Center Wage Library website.  The primary purpose of the inclusion of the prevailing wage consideration into the Labor Certification analysis is because it is believed to be in the U.S. national interested to make sure that neither the qualified U.S. workers nor foreign nationals willing to work in the United States are abused or discriminated against through the U.S. immigration process (i.e. the jobs that would otherwise be desirable to U.S. workers would not be offered at a discounted rate to discourage them from applying; thus, demonstrating that no U.S. worker is willing to take it; while making the jobs available to foreign workers at lower rate of pay than the prevailing rate in the U.S.)

Once the sponsoring U.S. employer completes its job advertising and recruiting efforts, it files Form ETA-9089 with the DOL.  This application is signed by an authorized representative of the sponsoring employer who would be required to state, under the penalty of perjury, that the sponsoring employer was unable to recruit willing and qualified U.S. workers for the job at the prevailing wage and that, therefore, it intends to hire a qualified foreign national for the same job at the same prevailing wage, subject to the DOL’s approval of the Labor Certification.  The DOL will approve the Labor Certification, only if it is satisfied, based on submitted information, that the sponsoring U.S. employer has undertaking the recruiting efforts in good faith and the recruiting process was not intentionally defective. Unless the Labor Certification is received, the U.S. employer cannot proceed to the next phase in the EB-3 immigration visa sponsorship process.

It is worth noting, that there are many practical considerations that must be taken in account when preparing for and running the Labor Certification process.  Not doing this thoughtfully and correctly would result in considerable delays and may preclude the employer from being able to sponsor a qualified foreign national for the job for a long time.  For example, a thoughtful development of the job description that would be used to ‘test the market’, as part of the Labor Certification process, is very important.  To successfully support the Labor Certification application, the job description must be carefully structured to address four separate parameters:

1. it must include all important qualifications, education and experience required for the job that the sponsoring employer needs to fill,
2. it must appropriately reflect the qualifications, education and experience that matches the EB-3 immigration visa Skilled Worker or Professional Worker eligibility criteria,
3. it must correspond to the qualifications, education, and experience that the foreign national that the sponsoring employer wishes to hire actually has, and
4. it must outline job qualification requirements that the available U.S. worker pool does not readily possess in the jurisdiction where the job is being offered. 

It is also important to advertise the job in the appropriate market via appropriate channels to satisfy the DOL’s stringent Labor Certification requirements.  If the job description does not adequately describe the job for which the U.S. employer is recruiting or if the recruiting process is not fulsome, the Labor Certification will be denied and the employer will have to either abandoned the process or start it from the beginning. On the other hand, if the job description does not map to specific EB-3 visa eligibility requirements or to the foreign national’s qualification, then the USCIS will likely deny the EB-3 visa petition as part of its review.   

The Labor Certification process is about availability of qualified and willing U.S workers for jobs on offer. U.S. employers who struggle to recruit qualified U.S. workers in certain occupations and use EB-3 immigration visas to attract and retain qualified foreign nationals, as part of their business model, may have Labor Certifications current at all times and hire foreign workers as needed. Therefore, some U.S. employers with several similar positions to fill invest into the Labor Certification process, even before they have identified foreign nationals they wish to hire; and then, once the Labor Certification is in hand, proceed to recruit and petition to hire qualified foreign nationals for the job. 

EB-3 Schedule A visa application process USCIS covers a few specific exceptions to the Labor Certification requirement.  If the foreign national’s experience and qualifications fall into these limited exceptions, then the Immigration Petition for Alien Worker is filed directly with the USCIS without the Labor Certification process as a prerequisite (see, Special Consideration for Nurses Applying for EB-3 section of this article).

Immigrant Petition for Alien Worker

After the Labor Certification for the open position(s) is secured, the sponsoring U.S employer must petition the USCIS on behalf of the qualified foreign national to obtain the approval to hire and secure EB-3 immigration visa for the employee.  Immigration Petition for Alien Worker (Form I-140) is utilized for this petition process.  Extensive documentation in support of the petition and the USCIS review include details on how the foreign national meets the EB-3 Skilled Worker or Professional Worker qualification criteria and how these qualifications map to the job requirements outlined in the Labor Certification.  The supporting documentation must adequately reflect relevant work experience, training, educational credentials, and special skills of the foreign national. The experience attained while working for the sponsoring U.S. employer in the position used for EB-3 visa petition application may not be used to support foreign national’s qualifications and eligibility for the immigration status. If these qualifications were obtained while working in a substantially different position with the same employer, they can be used.  What constitutes ‘substantially different’ position is a matter for USCIS reviewer’s discretion and is based on each case’s specific facts and circumstances, but usually assumes at least 50% of different responsibilities in the job. 

Supporting documentation in support of the Form I-140 petition must be included to demonstrate that the foreign national beneficiary of the petition has the qualifications for the offered position as reflected in the minimum requirements for the Labor Certification:

• College or university transcripts and course descriptions (which may be used to document not only education but also incremental special skills such as coding expertise or language proficiency);
• Certificates for specialized training;
• Letters of reference from prior employers confirming employment records and skills on company’s letterhead;  
• If the former employer is no longer in business, the foreign national’s former manager can provide confirmation of the employee’s role, dates of employment, and skills.  Evidence that the company is no longer in business must be credible for the letters of managers to be accepted in lieu of statements from the company, as evidence of employment.

The sponsoring U.S. employer must also include documentation supporting its financial wherewithal to be able to pay the foreign worker while also maintaining other working capital requirements of the business (the so-called “ability to pay” requirement).  USCIS specifically requires that “the petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence” (8 C.R.F.  §204.5(g)(2)).  The documentation in support of this ‘ability to pay’ requirement includes, but is not limited to annual reports, financial statements audited or reviewed by qualified independent accountants, and tax returns for several years going back to the “priority date” for the application. 

For larger organizations with well-established reputations and known brands, USCIS may accept written statements and affidavits from the sponsoring organization’s chief financial officer.  If the foreign national is employed with the sponsoring organization prior to the EB-3 petition filing, and assuming this employee is being paid the prevailing wage, his/her pay stubs or the W-2 statement dating back to the “priority date” may be used as evidence of the sponsoring employer’s ability to pay. 

If provided supporting documentation is incomplete or constitutes inadequate support, USCIS may deny the application or request additional support.  The petition denial results in material delays to the petition process.   

If the sponsoring employer’s petition is approved, the application moves to the National Visa Center (NVC), which collects and reviews additional supporting documentation provided by the foreign national.  The sponsoring U.S. employer meantime files the Application to Register Permanent Residence or Adjust Status on Form I-485, as soon as the petition priority date is current.

Once notified by the NVC, the foreign national applicant must file (usually online or directly at the U.S. Embassy or Consulate in the country of his/her domicile) the visa application for immigration to the United States on Form DS-261.

NVC will undertake a thorough security and background check for the applicant.  The applicant will also be required to complete a comprehensive medical exam that  meets the health requirements for entry into the United States, including evidence of customary vaccinations (or will be asked to agree to be vaccinated prior to the entry into the United States).  The health examination and the vaccinations are conducted by a qualified physician approved by the NVC.  Once the proof of these formalities is secured, the foreign national provides the following documentation to NVC in support of the DS-261 application:

• Evidence of the full-time permanent employment offer from the sponsoring employer in the United States;
• Evidence academic credentials (baccalaureate degree diploma, other certificates and post graduate credentials that serve as evidence of education and additional training or experience);
• Detailed professional resume reflecting relevant training, experience and qualifications based on which the sponsoring employer selected the foreign national for the job and which meet the EB-3 Skilled Worker or Professional Worker qualification requirements;
• A copy of the original birth certificate;
• A passport from the applicant’s country of citizenship valid for six+ months after the intended immigration date;
• Criminal record clearance in support of the required background check;
• A copy of Form I-94 with arrival and departure record to/from the United States, supporting the applicant’s assertion that he/she have remained in the United States lawfully;
• Medical and vaccination documentation from an approved licensed physician;
• Two photographs that meet U.S. passport/visa requirements; and
• Other supporting documentation as required by NVC based on specific facts and circumstances of the EB-3 petition application.
  

Because years may pass between the time the employer’s EB-3 immigration petition is initially reviewed by the USCIS and the time when the foreign national’s visa priority is current, NVC usually delays the request for foreign national’s documentation until the visa priority date is current. 

Foreign nationals who reside outside of the United States at the time of their visa interview will be interviewed in the U.S. Embassy or U.S. Consulate of the country of their residence, as part of their Immigration Visa Processing (IVP), once the priority is current and the required documentation has been reviewed and deemed sufficient by the USCIS and NVC.  Those who are residing in the United States on non-immigrant visas, will be interviewed by the USCIS as part of the Adjustment of Status (AOS) process. Regardless of where and by whom the interviews are conducted, the objective of the interview is the same – to determine the authenticity of the information provided throughout various parts of the employee-based immigration visa application in support of EB-3 status. 

The focus on the interview is the foreign national’s qualifications for the job offered, as part of the EB-3 process, and may include details of the applicant’s past experience, details of organizations for which the foreign national worked, the academic experience, names and relationships of those who provided supportive evidence for the EB-3 petition.  Any information included on Form I-485 and Form I-140 is fair game for the interview process.  The interviewer assesses not only the information that the applicant provides, but the applicant’s demeanor in how the questions are asked and answered to validate the information provided throughout the immigration petition process.

In preparing for an EB-3 visa interview, the applicant should carefully review all the information that he/she and the sponsoring U.S. employer filed and be prepared to address any details and background information about every aspect of the documents filed with the DOL and USCIS in connection with the EB-3 petition application.

Applicants who go through their AOS or IVP process together with their families, must be prepared for their family members to be interviewed; and the family members must be equally prepared to make sure that the information they share during the interview process is not inconsistent with the information provided on the primary petitioner’s application nor information he/she shared in the interview.

Pursuant to relevant regulations, the annual allotment for employment-based immigration visas is 140,000, which is only a small subset of the total immigration and non-immigration visas conferred in the United States (AILA.2.1).  The regulation also limits the number of employment- based visas approved in any fiscal quarter to 27% of the annual quota (AILA.2.2).  Further, the employment-based visas are further limited by their preference category.   Only 28.6% of the overall employment-based visas’ annual allotment is set aside for EB-3 visa and that includes visas that can be issued to spouses and minor children of the applicants. 

In addition to these annual limitations, all employment-based visa applicants are subject to an annual per-country restriction.  Only seven percent of all employment-based visas can go to any one country in a fiscal year (AILA.2.3).  Visas issued to applicants born in one country but immigrating to the United States from another country count toward the annual allotment from the country where they were born and not the country from where they are immigrating. For example, a visa granted to the Canadian citizen immigrating to the United States who was born in Venezuela, would count toward the Venezuelan and not Canadian annual country limit.  

Some maintain that an equal allotment for countries with large and small populations and with large and negligible interest in immigrating to the United States creates discrimination against countries like China, India, Mexico and the Philippines which all have large populations and a large number of interested immigrants.  The U.S. Department of State, nevertheless, maintains that country specific annual visa allotments are not discriminatory, and that immigration visas’ availability disproportionate to countries’ populations or the number of interested immigrants is not inconsistent with the U.S. Immigration Policy, which is alleged to be focused on providing equal access to people  from all countries. 

If employment-based immigrant visas from one or more preference categories are underutilized in a fiscal quarter, unused visa allotments can be transferred between certain (but not all) visa preference categories. For example, EB-2 underutilized visas can be repurposed for EB-3 preference, but EB-1 underutilization cannot be used for EB-3 applicants (AILA.4.3).

As stated elsewhere, the EB-3 immigration visa application process consists of three distinct steps, each of which takes considerable time.  The first step, the Labor Certification process, takes between six and twelve months to complete. The actual DOL consideration of the fully completed Labor Certification request on Form ETA-9089 may take anywhere from four to six months.  Yet, before the ETA-9089 may be filed, the sponsoring employer must determine the prevailing wage information and must complete the advertising and recruiting process for its job posting, which can take more than three months.  The process may be further delayed, if the DOL has concerns about how the sponsoring employer conducted the Labor Certification information gathering and elects to audit it.

The next step is the USCIS review and approval of the Immigration Petition for Alien Worker on Form I-140.  It usually takes another six months to complete.  The sponsoring organization may expedite this step by paying the Premium Processing fee and have the I-140 Petition determination completed in just 15 days.  In April 2020, USCIS temporarily suspended the Premium Processing accommodation due to COVID-19 pandemic, but it is expected to be reinstated in the near future. The Premium Processing fee is paid in addition to the regular Form I-140 filing fee and is very expensive.  Before deciding on whether to pursue the Premium Processing route, the petitioner should consult the status of the Petition’s priority date.  If the priority date is not current, the expediting of the I-140 Petition’s consideration is not going to expedite the ultimate visa application process and is a waste of money.   The time required for the Petition review is also impacted by whether the USCIS reviewer deems the file to be complete and whether there is a requirement for additional documentary support. If the Petition is denied due to insufficient documentation, the sponsoring U.S, employer would have to consider whether to seek to re-file with new or additional documentation or to appeal the denial.  Either way, the time required for the Petition’s determination in that case would be materially impacted.

Finally, once the Petition is approved and, assuming the applicant’s priority date is “current”, the final step in the EB-3 immigration visa application process can start with the Immigration Visa Processing (IVP) or Adjustment of Status initiated via Form I-485.  This final step may take anywhere between four and six months and cannot be expedited.

Another part of the visa application process that impacts the overall timing for the EB-3 permanent residency visa application is the so-called priority date. The priority date is the mechanism that the USCIS uses to establish the order in which different applicants applying for the same visa type from the same country qualify to receive their EB-3 visa (AILA.6.3). The foreign national’s priority date is set at the date when the Immigration Petition for Alien Worker (Form I-140) was received by USCIS. This date establishes the foreign national’s place in line for the final step in the immigration process (AILA.6.4). The priority date becomes ‘current’ when the availability of the immigrant visa allotment in the preference category for the country in question exceeds the relevant demand for that visa (AILA.6.5).  Then there is no waiting period for the EB-3 visa and the priority date is “current”.  When the number of petitioners from a given country in the EB-3 visa category is greater than the available allotment, a wait list is created.  The petitioner’s priority date becomes “current” when it precedes the wait list cut-off date. If the priority date becomes ‘current’ before the I-140 Petition is approved, the petitioner will be able to move to the next step in the process as soon as the approval is received.  More often, however, the I-140 Petition for EB-3 visa is approved before the priority date is ‘current’ and the foreign national must wait to move to the next step in the process (AILA.7.3) -- Application to Register Permanent Residence on Form I-485 which starts the Immigration Visa Processing (IVP) or Adjustment of Status (AOS). The status of all priority dates by visa category can be determined by consulting the Visa Bulletin published quarterly by the U.S. Department of State (DOS).   

Most EB-3 visa applicants from countries other than China, India, and the Philippines, can reasonably expect to receive their EB-3 immigrant visa in eighteen to thirty months.  Applicants from China, India and the Philippines may wait decades for their EB-3 priority date to become current, because of the number of interested petitioners in the queue (AILA.3.3).

Because EB-3 priority date wait times can be very long, sometimes applicants may gain additional education or experience, while waiting, which would make them qualify for an EB-2 priority visa or perhaps their circumstances may change where even the EB-1 petition is possible. For example, an EB-3 applicant may have attained a master’s degree, while the EB-3 process was on-going, and may now be qualified for an EB-2 visa. Should it happen, the applicant in partnership with the sponsoring organization may resubmit the Immigration Petition for Alien Worker on Form I-140 as an EB-2 applicant.  That would cause the Petition’s review to restart but may still yield faster overall processing time.  The opportunity to move up in visa preference, however, is not always straight forward. New higher qualifications may not always match the job used for the original EB-3 visa petition purposes, and the new job opportunity may be needed to support EB-2 petition, which could also lead to the need for a new Labor Certification.

While the foreign nationals who are applying for permanent residence immigration status under EB-1 and EB-2 regimes may have their spouses and unmarried children, under the age of 21, apply for entry into the United States and certain work and immigration status as soon as the foreign nationals’ I-140 petition is approved and while the final immigration status considerations are still pending; those who are seeking their permanent residency immigration status via the EB-3 process, may have their spouses and minor unmarried children apply for status only after the permanent residency has been conferred on the applicant.  Once the applicant is a permanent resident, his/her spouse may come to the United States via either E-34 – ‘skilled worker” or EW-4 – “other worker” visas.  Minor children of the EB-3 permanent resident who are unmarried usually apply to be in the United States under E-35 (“skilled”) or EW-35 (“unskilled”) visa respectively. While the process of applying for permanent residency is ongoing, the foreign national’s spouse may apply for an Employment Authorization Document (EAD), which lets the holder work freely in the country unless the permanent residence process is denied.

Because the eligibility for EB-3 immigration visa are not very difficult to meet and the relevant qualifications are objective and, therefore, subject to less subjectivity in review, most EB-3 visa applicants successfully clear the final stage of the application process, once their Form I-140 Petition has been approved and their priority date is current.  The addition of the formal interview process as part of EB-3 AOS/IVP have increased the number of denials, however.

Most foreign nationals whose applications are denied fail to provide consistent support for assertions of their qualifications and experience or provide contradictory evidence in different stages of the application process.  For example, the inability to support employment history as reflected in the Form I-140 Petition or Form I-485 application with relevant commentary during the interview process can lead to a denial.  Failure of medical examination, or inconsistencies between the job posting cleared through the Labor Certification process and the job that the foreign national is qualified to do are other reasons for a denial.  Those whose background or security check fails, will not be issued an EB-3 permanent residence visa.  Finally, sometimes, EB-3 visa is denied because the sponsoring U.S. employer fails to demonstrate its ability to pay the foreign worker.

The EB-3 denial may be appealed, or the applicant may seek a reconsideration.  An appeal involves the assertion by the applicant that the application reviewers or interviewers were outright wrong in how they interpreted the information or reviewed evidence.  The appeal is considered by the Administrative Appeals Office (AAO), an organization independent of the USCIS and the Department of State.  A motion for reconsideration or a motion to reopen the case usually involves the introduction of additional evidence in support of the application and is reviewed again by the same USCIS reviewer who considered the original denied application.

Nurse shortage in the U.S. healthcare industry created the need for a special expedited employment-based immigration visa process for qualified nurses interested in immigrating to the United States on a permanent resident status.  A modified EB-3, Schedule A, immigration visa petition process is used to support this national need.

Qualified nurses with a bona fide job offer from a U.S. hospital or an accredited medical center, who pass the Commission on Graduates of Foreign Nursing Schools (CGFNS) exam and receive required certifications (which serve as a predictor of the applicant’s ability to pass the nursing exam in the United States) or who already hold a nursing license from a U.S. state or territory of intended employment may apply directly to USCIS with an Immigration Petition for Alien Worker (Form I-140) using EB-3 preference.  While certain standard DOL Labor Certification information about the applicant’s nursing qualifications and experience and how they map to the sponsoring hospital’s or medical center’s job posting must also augment this Form I-140 filing, the time consuming ‘market test’ recruiting an DOL’s Labor Certification clearance are not required as pre-requisites to having the EB-3 immigration visa petition reviewed and approved by USCIS (20 CFR §656.5). 

The documentation required for this special filing includes (20 C.F.R. 656.22(c)(2))

• The detailed job description and evidence that the job has been posted, including rate of pay and work hours requirements.  The notice has to be posted on external job boards and workplace for at least ten days;
• DOL Labor Certification forms without evidence of recruiting activities outside of standard posting covered above;
• The applicant’s CGFNS certificate or nurse license from U.S. state or a territory where the nurse is/will be working;
• The applicant’s nursing diploma or other evidence of a degree from a foreign jurisdiction;
• Nursing registration/licensure from the country where the degree was obtained; and
• Evidence that the sponsoring employer has the financial ability to pay the salary offered to the nurse. The required documentation in support of this ‘ability to pay’ requirement is the same as for other EB-3 petition applications and is covered elsewhere in this article.

The nurse candidate may file the AOS or IVP petition via Form I-485 at the same time as the Immigration Petition Alien Worker (Form I-140) filing or after the Immigration Petition is approved.  The Form-485 application package should include, in addition to the standard application requirements, a ‘VisaScreen’ certificate from an independent visa assessment service that provides a comprehensive review of health providers’ credentials.

While the USCIS may take 18 to 24 months to process the full AOS/IVP application, qualified nurses already residing in the United States may expedite the process further by receiving a work authorization within approximately three to four months after filing the Immigration Petition for Alien Worker (Form I-140) and the AOS application (Form I-485), which would allow them to commence work while the other applications are pending with USCIS.

Fees Involved in the EB-3 Visa Process

Numerous fees are involved the EB-3 visa process. Certain fees are paid by the sponsoring U.S. employer while others are paid by the foreign national applicant. The sponsoring employer pays fees associated with the DOL Labor Certification process, including the filing fees and fees associated with ‘market test’ recruiting; the Immigration Petition for Alien Worker Form I-140 fee and the expedited Premium Processing fee, if desired.  The foreign national pays the Form DS-261 processing fee; fees associated with developing and securing supporting documentation regarding the applicant’s qualifications, education and experience, including translation fees from foreign language into English; and medical examination and vaccination fees.