After receiving an approved PERM labor certification application, a sponsoring U.S. employer subsequently files an immigrant petition on behalf of its alien worker. Crucial distinctions emerge during this process as a function of the type of immigrant petition filed. We delve into the divergent processes entailed in post-PERM EB-2 and EB-3 applications below.
Before discussing the choice between EB-2 and EB-3 visas in the context of PERM, a review of pertinent background information is in order.
EB-2 visas are part of the employment-based, second-preference immigration category meant for foreign professionals with advanced degrees or the equivalent (i.e. master’s degree or higher, or five or more years of work experience), or foreign nationals who have demonstrated exceptional ability in the sciences, arts, or business. In some instances, a professional with a bachelor’s degree and five years of progressive work experience related to the job being offered may be deemed to possess the equivalent of a master’s degree in the field.
EB-3 visas fall under the employment-based, third-preference immigration category meant for foreign nationals with a bachelor’s degree, or foreign nationals who are skilled workers; workers are considered “skilled” if they have at least two years of work experience relevant to the job being offered. Additionally, there is a subcategory for unskilled workers requiring no more than two years of work experience.
The priority date is the date on which an alien initially expresses his or her intention to immigrate to the U.S. through an appropriate petition. For employment-based beneficiaries, this amounts to the earlier of two dates: the date an application for PERM labor certification was received by the U.S. Department of Labor (DOL), or the date that an immigrant preference petition was filed. For certain employment-based petitions, including National Interest Waiver applications and EB-1 petitions, a labor certification is not required. In such cases, the immigration process starts with filing the petition, rather than with the PERM application process.
If labor certification is a prerequisite for an immigrant petition, as it is for most EB-2 and EB-3 visas, the petitioner cannot file an I-140 petition until DOL approves the associated PERM application. Accordingly, the priority date is the date on which the labor certification application is filed with DOL. The beneficiary will retain this priority date when filing the I-140 petition once DOL certifies the associated PERM application.
Certain aliens are subject to restrictions imposed by annual immigrant visa quotas. Oftentimes, quotas are quickly reached in certain categories, a situation causing visa backlogs. The U.S. State Department (DOS) publishes a monthly waiting list, known as the visa bulletin, which serves to regulate which aliens are eligible to apply for adjustment of status or complete consular processing. The bulletin provides dates for each family-based and employment-based preference category, and updated visa availability dates are known as cut-off dates. (We publish up-to-date information on these dates and more here.)
Why are Priority Dates and Cut-off Dates Significant?
For aliens who are subject to annual immigrant visa quotas, the priority date and the cut-off date determine when they can file an application for adjustment of status or complete consular processing in order to become a permanent resident. If the priority date is earlier than the cut-off date, an alien may apply for adjustment of status or start consular processing, a situation that is referred to as having a “current” priority date. If the priority date is later than the cut-off date, then the alien must wait until the cut-off date passes the priority date. If an application is pending, and visa numbers retrogress, then an alien will have to wait until his or her priority date becomes current again to continue processing the application. Simply put, the earlier the priority date, the sooner an alien will become eligible to apply for permanent resident status.
Availability of Visa Numbers
In addition to differences in education and work experience requirements, another distinction between EB-2 and EB-3 petitions is that visa number availability is not uniform across both categories. Visa number availability refers to whether or not there are immigrant visas available for which beneficiaries of employment- or family-based petitions can apply. This availability is regulated by visa number quotas set by Congress. Ultimately, whether or not a visa is available depends on both the quota and how many people are waiting for immigrant visas in the same category.
PERM Regulations on SVP
According to PERM regulations, if a position requires qualifications that are greater than those established by Occupational Employment Statistics (OES) Job Zone levels and Specific Vocational Preparation (SVP) levels, the employer may have to provide a business necessity justification to DOL. As classificatory scales, both Job Zones and SVP are objective criteria that DOL uses to help distinguish between low-skill and high-skill jobs.
OES Job Zones comprise five levels, among which level 4 and level 5 are most relevant to PERM applications. Essentially every occupation is classified according to the various levels, which are characterized by relatively inflexible standards. For instance, occupations in Job Zone level 4 usually require a bachelor’s degree, while those in Job Zone level 5 typically require, at a minimum, a bachelor’s degree but also may require an advanced degree. In the numerical classification, DOL is in effect saying that occupations falling under level 1 are those that require the least amount of skill, training, or education, while those falling under level 5 require the most.
Job Zone and SVP classification are interrelated. For example, a Job Zone level 4 position has an SVP of 7, while a Job Zone level 5 position has an SVP of 8. According to DOL, an SVP of 7 is defined as a position requiring no fewer than two and no greater than four years of experience, education, and training combined. An SVP of 8, on the other hand, is defined as a position requiring no fewer than four and at most ten years of experience, education, and training combined. Using this information, DOL differentiates between the various Job Zone levels. In a labor certification application, a job offer must conform to both the Job Zone level requirements and the SVP requirements.
In order to determine what Job Zone level a job being offered is, employers have to match the job duties to the same (or a similar) occupation in the OES database. Using the database is straightforward; for example, the occupation of computer programmer falls under Job Zone level 4.
We can illustrate the above by considering a hypothetical case study.
A financial services firm is offering an accounting job, which falls under Job Zone level 4. The firm wants to require job applicants to have both a bachelor’s degree and three years of experience.
Is the employer adhering to the specifications provided?
No, the accounting firm is exceeding the requirements. According to DOL, a bachelor’s degree is the functional equivalent of two years of experience, education, or training. As such, the accounting firm is requiring experience, education, and training that, combined, amounts to five years. A Job Zone level 4 position is permitted to require up to a maximum of four years of experience. In the end, DOL may consider the requirements to be unduly restrictive, and may request the employer provide a business necessity justification.
Choosing between EB-2 and EB-3
The Job Zone level of a position is crucial in distinguishing jobs associated with EB-2 and EB-3 visas. Consider the position of computer programmer, which falls under Job Zone level 4. If an employer intends to require a master’s degree for the position of computer programmer in order to file an EB-2 petition, DOL may challenge that the employer’s requirements are unduly restrictive because they exceed the level 4 requirements. As noted above, DOL may require the employer to provide evidence to justify the business necessity of requiring a higher level of education.
Immigrant visa numbers for the EB-3 category frequently retrogress or otherwise become unavailable for those born in China, India, and the Philippines. Each country has an annual quota of assigned immigrant visa numbers for each employment-based category. If visa numbers for one country are oversubscribed in a certain category, then visa numbers will retrogress or become unavailable to beneficiaries born in said country. In other words, even if both a PERM application and I-140 immigration petition are approved, but a visa number is not available to the alien beneficiary, then the alien will not be eligible to file for adjustment of status or undergo consular processing to obtain lawful permanent residence.
EB-2 visa numbers sometimes retrogress as well. In fact, during certain periods of the year, immigrant visa numbers may become completely unavailable due to oversubscription. (For immigrant visa number availability, refer to here or here.)
Generally, if a backlog exists, the EB-2 category has a comparatively shorter waiting period than does the EB-3 category. If visa numbers are not current for the category according to the alien’s priority date, then the alien will have to wait until they become current before being eligible to file an application for adjustment of status or complete consular processing. (Visa number availability changes every so often, so be sure to consult our visa bulletin and analysis, which you can find here.)
Needless to say, a major concern for any alien is the length of time it will take to obtain a visa number. Unsurprisingly, then, whether an employer should file an EB-2 or EB-3 petition is a critical decision to make, since it will ultimately determine how long it will take until the alien beneficiary can permanently work for the employer.
Solution: Justifiable Business Needs
Employers with justifiable business needs can require education and work experience qualifications that exceed those stipulated. Such employers can proceed with filing an EB-2 PERM application, but they should be prepared to provide evidence justifying the excessive job requirements in the event DOL requests such information. If DOL requests documentation or evidence supporting an alleged business necessity, then the associated PERM application may be delayed, but as long as there is a real, justifiable business need for any excessive requirements, the application may ultimately still be approved.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.
For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links: