EB-3 “Other Worker” Category

In a previous article, we covered eligibility requirements for EB-2 advanced degree and exceptional ability aliens, and EB-3 skilled and professional workers. The third preference category of employment-based immigration (EB-3) is divided into two sub-categories: “professional/skilled workers” and “other (unskilled) workers.” This article will discuss general application procedures and requirements regarding the “other worker” category.

Client: How do I know if my position falls under the EB-3 “other worker” category?

Attorney: The “Other worker” category applies to unskilled labor positions that require less than 2 years of training, experience, or higher education. This is determined by the employer and certain Department of Labor (DOL) publications that indicate requirements for most job positions in the United States. “Other worker” positions include nursing aides, orderlies, home health aides, child care workers, butchers, telephone operators, fast food cooks, retail salesperson, and many others.

Client: Is there really that big of a difference in the waiting time between the EB-3 “professional/skilled workers” category and the “other workers” category?

Attorney: The “other workers” category has a much longer waiting period. Based on the March 2010 Visa Bulletin the government is working on “professional/skilled workers” cases from December 15, 2002, and “other workers” cases from June 1, 2001. Although it may not seem like a lot of time it’s important to note that of the 28.6 percent of the yearly limit for the EB-3 category only 10,000 visas are available for “other workers.” Therefore, “other worker” foreign nationals will probably wait much longer than “professional/skilled workers.”

Client: Does the “other worker” category require a job offer?

Attorney: Yes, foreign nationals applying under the EB-3 “other workers” category must have a permanent, full time job offer from a qualified employer. Your employer is also required to complete the labor certification (PERM) process on your behalf in order to prove there are no able, willing and qualified U.S. citizens or permanent resident workers.

Client: What is the filing procedure under the EB-3 category?

Attorney: In order to obtain permanent residency through the EB-3 classification, the employer must first complete the labor certification (PERM) process. The alien’s “priority date” is the date the PERM is submitted to the DOL for processing. Once the PERM is approved, the employer must file Form I-140 at a USCIS Regional Service Center that services the area of employment. All Form I-140 EB-3 petitions must include a certified PERM (ETA9089) and a permanent, full-time job offer. After the I-140 petition is approved the employee must wait for a current “priority date” before applying for adjustment of status (if in the U.S.) or consular processing for an immigrant visa at a U.S. consulate (if outside of the U.S.). For example, if you filed a PERM today then you would have to wait until the “other workers” category indicated a current priority date of February 2010 before applying for permanent residency. As stated, the visa bulletin priority date for “other workers” is currently June 1, 2001.

Employment-based immigration entails several interrelated issues that must be handled with precision in order to ensure a success application. It’s important to carefully analyze a job offer before starting the labor certification process. Petitioners and foreign nationals who want to know whether they are qualified for procedures discussed in this article should consult an experienced and knowledgeable U.S. immigration attorney.