Is the EB-3 Unskilled Visa Program legal?
Yes, this visa program is legal. The EB-3 Visa program was created by the Immigration and Nationality Act (“INA”) of 1990. The law created individual preference categories for employment-based Green Cards such as the EB-1, EB-2, EB-3, EB-4, and EB-5 program. In order to find employees for hard-to-fill jobs, Congress set aside 10,000 visas per year for full-time jobs that require less than 2 years of training and experience.
What is the process to obtain the EB-3 Unskilled Visa?
A foreign national can obtain the EB-3 Unskilled Visa by either (1) adjusting their status in the United States from a student visa or other type of visa to the EB-3 Visa or (2) applying overseas to be interviewed at a local U.S. Embassy or Consulate. First, an employer must sponsor the foreign national for a job in the United States. The employer must obtain a labor certification from the Department of Labor (“DOL”) by going through a process of advertisement and recruitment to prove that no American workers are being denied an opportunity to work in the job because of an employer’s participation in this visa program. Once the labor certification process is complete, the employer and the foreign national petition the Department of Homeland Security (“DHS”) for an EB-3 immigrant visa with a form I-140.
If the foreign national is in the United States in some other qualified legal status such as a student visa or an E-2 visa, the foreign national may adjust their status to EB-3 under a form I-485 with DHS. Once both the I-140 and I-485 are approved, the foreign national will interview at DHS and, if no problems exist, be eligible to be approved for a Green Card. If the foreign employee resides outside of the United States, the foreign employee will apply for the I-140 and be interviewed for the Green Card at a designated U.S. Embassy or U.S. Consulate.
Is it possible that I am overqualified for the EB-3 Unskilled visa since the job is for people who are unskilled?
No. The only requirements for the EB-3 unskilled visa are a labor certification and that the job offer be full-time. If you are willing and able to perform the job being offered and the employer can show no American worker wants to do that job, then you meet the qualifications for the visa, notwithstanding certain criminal background(s) or the like. Your degree or prior job – whether as a doctor, lawyer, or scientist – is not materially relevant to your visa approval.
If my spouse or I worked unauthorized, can we still apply for the EB-3 Unskilled visa program?
Engaging in unauthorized employment has numerous adverse immigration consequences. In the adjustment of status context, having engaged in unauthorized employment prohibits a foreign national from adjusting their status (AOS) under sections 245(c)(2) and (8) of the Immigration and Nationality Act (INA). Unauthorized work can be ANY work (whether the foreign national has a Tax ID or social security number or not). It is ANY service or labor performed for an employer within the United States by a foreign national who is not authorized by the INA or USCIS to accept employment. If a foreign national has worked for any period without proper legal authorization, then they are statutorily barred from adjusting status unless there is an exception that applies in their case.
INA Section 245(k) permits individuals to obtain approval of an adjustment of status if the period of unauthorized work does not exceed 180 days. If a foreign national has worked for more than 180 days, then they can still obtain an EB-3 Unskilled visa through consular processing at a U.S. Embassy or Consulate outside of the United States. Under State Department regulations, since the foreign national has already removed themselves from the United States and returned to their home country, any unauthorized work status is cured and nullified. Under State Department rules, U.S. consulates abroad must issue the visa to the foreign national unless they find that they are disqualified for other reasons, and a prior history of unauthorized employment is not considered a disqualification.
Are the use of public benefits such as Medicare, Medicaid, or other government benefits an ineligibility for the EB-3 program?
Under the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status is inadmissible (and therefore unable to enter the United States or receive a visa or green card) if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." Not all government assistance will be considered when determining if an applicant is deemed to be a public charge.
These programs will be considered evidence of being a potential public charge if the applicant is currently receiving or has received them in the past:
· Supplemental Security Income (SSI)
· Temporary Assistance for Needy Families (TANF)
· State general relief or general assistance
· Benefits provided for institutionalization for long-term care
The public charge rule does not include receipt or potential receipt of the following benefit programs:
· Emergency medical assistance
· Disaster relief
· National school lunch or school breakfast programs
· Foster care and adoption
· Head Start
· Child Health Insurance Program
· Earned Income Tax Credit or Child Tax Credit
· Giving birth to a child in the United States
· Medicaid (except for “emergency Medicaid,” certain disability services related to education, school-based services or benefits to children below the oldest age set for secondary school education; benefits received while under age 21; and pregnancy benefits including 60 days post pregnancy)
· Supplemental Nutrition Assistance Program (SNAP, formerly food stamps)
· Section 8 Housing Choice Voucher Program
· Section 8 Project-Based Rental Assistance, and
· Public Housing.
If I was denied a visa before, am I still eligible to apply for this visa?
Whether denied a non-immigrant visa such as a tourist visa or a student visa or an immigrant visa such as a marriage visa, eligibility to reapply for a visa such as the EB-3 unskilled visa will be dependent on the reason for the denial. If a foreign national was denied a non-immigrant visa on the grounds of Section 214(b), Section 221(g) or 7(A)(1) of the Immigration and Nationality Act (“INA”) then they can reapply for the EB-3 or other visas later. However, if the foreign national was denied a visa and given an ineligibility due to fraud, misrepresentation, criminal arrests in certain circumstances or other issues, then they may be barred from obtaining any future visas. Prior to reaching out to BDV Solutions you should consult with a trained, licensed, immigration attorney to ensure that you are eligible to reapply for a visa.
What are some of the reasons I would be denied a visa for the EB-3 Unskilled program?
Though denials of EB-3 unskilled visas are rare when working with BDV Solutions, LLC and our affiliated sponsors and attorneys, they do occur. The main reasons for such visa denials are inconsistent, incomplete, misleading or inaccurate information given by the foreign national or the employer. Being honest is paramount in the immigration system and when a foreign national is not honest about prior refusals, unauthorized work, or other issues, it can, and has led, to denials.
How long will it take to obtain the EB-3 visa in general?
The immigration system and process are complex and constantly changing. Therefore, there is no set time frame for when or if an individual may receive their visa. There are several steps in the process for obtaining the EB-3 unskilled visa.
First, the sponsoring employer must undergo the labor certification process with the Department of Labor (“DOL”) to demonstrate that there are not currently available or willing American workers for the job which the foreign national has been sponsored. This process can take as little as six months but can be longer depending on any responses required by the DOL. If the employer is audited for example, this may extend the processing time up to a year and a half, and rarely, longer.
Once this process is complete, the foreign national, employer, under the direction of an attorney, will file the I-140 petition with the United States Citizenship and Immigration Service (“USCIS”), which can take six months or longer depending on any further questions from USCIS. If a foreign national is residing in the United States with a legal status such as an F-1 student, they will also file for what is called an “Adjustment of Status” (AOS). If the foreign national resides outside of the United States and has no legal status within the United States, then they will obtain their Green Card by interviewing at their designated U.S. Embassy or U.S. Consulate.
For those who file through AOS or Consular processing, it is generally estimated that it will take 15 to 24 months before an individual can receive their Green Card. However, it can take longer.
Can I Apply on OPT for the EB-3 Unskilled Program?
For individuals from countries with tighter restrictions on the number of green cards available (such as China or India), the answer is generally 'no' due to the large backlog of applicants and high likelihood of an applicant's OPT expiring before being able to file the green card application. In other cases, someone on OPT may be able to seek EB-3 sponsorship from their employer. This depends on several factors, including how much OPT the employee has used, whether the employee is eligible for a STEM extension, and the employer's desire to have the employee work for them permanently. You should seek legal counsel and discuss this option with your DSO.
What is the current processing time to receive the employment authorization card (EAD)?
While time frames can dramatically change, processing times are between six and nine months to receive the EAD card. There is no way to expedite the processing of the EAD.