The EB-3 Visa – A Powerful Recruitment Tool for US Business Owners
This article is aimed to help you and your business learn how recruit top global talent. The guide is intended for business owners who intend to implement transitional outsourcing programs where talent is initially employed overseas but with a path towards US residency. This method often results in a massive competitive labour advantage, as well as a more efficient employee training strategy.
Attracting qualified talent is among the most important - and most challenging - tasks for a U.S. business. Estimates show that there are currently thousands of unfilled positions on major US job search sites. Often times, businesses that are unable to find local talent turn to outsourcing.
While the full costs and benefits of this practice are beyond the scope of this article, it is vital to note that many times employers benefit from transitioning some of this outsourced labour to the U.S. The obvious benefits of on-site employment include daily interface, more efficient communication and workflow and an ability to keep track of employee productivity. Thanks to recent changes in U.S. immigration policy, it is now possible to attract top-level talent, train and employ them abroad and gradually transition them to a full-time domestic worker within 2 years.
A common scenario is the following:
1. Company X is seeking a software developer with specific experience with C++, Java, etc., but is unable to find a qualified and/or affordable US worker.
2. Company X recruits for the position abroad and finds a Foreign Worker Y with several years of experience. Company X interviews Foreign Worker Y and offers to begin training and employing the employee.
3. Company X and Foreign Worker Y negotiate the terms of the employment. At this stage, the offered wage and schedule are completely at the discretion of the Company and the Foreign Worker. Concurrent to this step, Company X agrees to sponsor a U.S. immigrant visa petition for Foreign Worker Y (the details, including costs and liabilities, are described below).
4. Company X’s attorney now begins the first steps of the immigration process for Foreign Worker Y and files the prevailing wage and undertakes recruitment (detailed below).
After a minimum of 60 days has elapsed, Company X’s attorney is ready to file the PERM application with the Dept. of Labor (also detailed below). At this stage Company X must be able to show that he or she has the ability to pay Foreign Worker Y the wage that is listed in the PERM application. This can be shown using one of the methods discussed in the Ability to Pay section below.
5. Once the PERM application is approved (3-6 months), the attorney for Company X files Form I-140 with the USCIS. Once the I-140 is approved (2 weeks – 4 months).
6. Upon I-140 approval, Foreign Worker Y files a petition with the U.S. consulate in his or her home country and awaits an interview at the US consulate abroad (4-6 months). At this stage, Company X supplies a letter showing that the job is still open and available to Foreign Worker Y.
7. Upon approval at the Consulate, Foreign Worker Y is able to enter the U.S. and can begin work in-person for Company X.
EMPLOYMENT BASED VISA – CATEGORY 3 (EB-3)
What is an EB3?
The EB3 is a Green Card for Professionals, Skilled and Other Workers. An EB3 Green Card is an employment based, third category visa that provides lawful permanent residence in the US to professionals, skilled workers and unskilled workers who obtain a permanent offer of employment in the US.
WHAT ARE THE BENEFITS FOR EMPLOYERS?
The most obvious employer benefit for an employer hiring an EB-3 worker is the addition of qualified talent to the employer’s workforce at a very competitive price.
Additionally, the timeline of the EB-3 program allows an employer to get to know a prospective employee and train him or her before having to pay a full wage.
For employers with existing outsourcing programs, EB-3 hiring is a great recruitment tool as it allows a path to US entry.
WHAT ARE THE BENEFITS FOR THE EMPLOYEE?
The EB-3 enables a foreign national to obtain permanent residence in the U.S.
The hiring U.S. employer’s primary responsibility is to comply with the regulations set forth by the Dept of Labor and USCIS. The foundational requirement for both of these agencies is that the employer is truthful regarding the availability of the position (i.e. that there is a real job offer).
Secondly, the employer agrees that the employee will be paid the wage that is listed on the PERM and the I-140 petitions. This wage is decided at the very beginning of the process, so the employer is aware of this responsibility from the outset.
Once the employee’s visa is approved and he/she is in the U.S., the employer-employee relationship is similar to any other. At this point the employee is free to terminate or promote the employee and the employee is free to quit, if they choose.
The process will be managed by an immigration attorney and should not interfere with employer’s regular business practices.
THE PERM PROCESS
STEP 1: PREVAILING WAGE (1-3 months);
Our office files a prevailing wage request with the U.S. Dept. of Labor to determine the minimum wage for someone in that job title. The area, job title, and other factors will determine
1. Job Description
2. Official Name of Employer
3. Tax ID
4. Job Site Address
DOCUMENTS FROM THE EMPLOYEE;
2. Education evaluation & translation of diploma
3. Resume/ Curriculum Vitae
4. Experience Letters, which should include all skills and experience required for the job position.
STEP 2: ADS (60 days)
Once the employer’s immigration attorney has received the prevailing Wage Determination, the job order is prepared. This is a form that is submitted in the U.S. state where the employment is located. This form is submitted for 30 days to locate a qualified US worker or permanent resident.
At this stage we also place job ads in 2 Sunday newspapers.
A spreadsheet is then provided to keep track of any applicants for the position.
STEP 3: PERM FILING (3-6 Months)
Roughly 60 days after the recruitment has been initiated, we will prepare and file the PERM form. At the date of this writing PERM processing times were 90 days.
STEP 4: I-140
Once the PERM is approved by the DOL the I-140 Stage of the PERM can begin. This can be premium processed within 15 days.
Documents required from employee:
1. All previous Form I-797 Approval Notices
2. Form i-94
4. Payroll paycheck stubs from the last two pay periods
6. W-2 wage and tax statement
7. All prior Forms I-20ID
8. Previous EAD cards.
Documents from Employer:
1. Ability to Pay documentation
STEP 5: CONSULAR PROCESSING (3-4 Months)
When the employee’s priority date becomes current per the Visa bulletin then then our office begins preparing the employee for an interview at the U.S. Consulate abroad. At this stage the employer’s only responsibility is to issue a letter showing that the position is still open for the employee.
Shortly after approval at the Consular interview, the employee can enter the U.S. as a permanent resident.
FREQUENTLY ASKED QUESTIONS
Do I have to pay and hire the employee as soon as I agree to sponsor?
No. The sponsorship is for a future position, so you are under no obligation to hire until the applicant’s petition is fully approved (roughly 18 months).
Do I have the option to hire the applicant before the petition is approved?
Yes. You are free to hire the employee at any time in the process prior to entry in the US.
If I hire the applicant while they are abroad, how much do I have to pay them?
It is up to you. There are no USCIS limitations regarding how much you have to pay a non-US worker.
When must the employer start paying the Prevailing Wage that is listed on the petition?
When the employee arrives in the U.S. and begins working for you here. The employer can begin paying the prevailing wage at any point, but is under no obligation to do so until the employee actually enters the United States and begins working.
How long must an employee continue to work for an employer after the green card petition is approved?
There is no set time that the employer must retain the employee. Since the employment relationship is “at-will”, the employer can treat the employee like any other worker . However, if the employee decides to quit early on, it may raise problems for his/her future citizenship application.
Does it matter which countries the employees are from?
All EB-3’s filed now are being processed within 18 months, with the exception of those filed for nationals of India, China and the Philippines who are subject to lengthy backlogs.
How long does the job need to be held open for?
The job must be held open until the processing for the EB-3 approval is complete. Towards the end of the process, the employer must provide the employee with a letter to take to the U.S. consulate in their home country that states that the job offer is still open.