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The employment-based 3rd preference category is divided into three areas: skilled workers, professionals, and unskilled workers.

A "skilled worker" means an alien who is capable, at the time of petitioning for the classification, of performing skilled labor (requiring at least two (2) years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.

"Professional" means a qualified alien who holds a minimum of a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.

"Other worker" (unskilled) means a qualified alien who is capable, at the time of petitioning for the classification, of performing unskilled labor (requiring less than [2] years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Every petition under the employment-based 3rd preference category must be accompanied by an individual labor certification from the Department of Labor. In addition, the alien must submit documentation to support his or her claim to the education and /or experience requirements of the labor certification.

Note: It is extremely important to try to classify the alien as a skilled, versus an unskilled worker. The total approval time for a skilled worker application is usually substantially less than for an unskilled worker application, because of the different waiting lists for each category.

Labor Certification: A permanent labor certification issued by the US Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the US employer can submit an immigration petition to USCIS the employer must obtain an approved labor certification request from the DOL. The DOL must certify to USCIS that there are no qualified US workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the alien will not adversely affect the wages and working conditions of similarly employed US workers.

As of March 28, 2005, under a program commonly referred to as PERM, all applications for permanent labor certification must be filed on new ETA Form 9089 at the appropriate National Processing Center and must adhere to the new PERM Regulations. (See our website for a copy of the complete PERM regulations, as well as significant additional information on the labor certification process).

In order to qualify for a labor certification, the alien needs a US employer who is willing to file an application on his or her behalf. The employer must hire the foreign worker as a full-time employee and there must be a bona fide job opening available to US workers.

Job requirements must adhere to what is customarily required for the occupation in the US and may not be tailored to the foreign worker's qualifications. In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity. Likewise, the employer must pay at least the prevailing wage for the occupation in the area of intended employment. Finally, the DOL prohibits employers from being reimbursed for the expenses they incur in acquiring permanent labor certifications on behalf of their employees, including payment by the alien of the employer's attorney's fees.

The employer must complete an Application for Permanent Employment Certification on ETA Form 9089. The application will describe in detail the job duties, educational requirements, training, experience, and other special capabilities the employee must possess to do the work, and a statement of the prospective immigrant's qualifications.

Prior to filing ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET (OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date.

All employers filing the ETA Form 9089 (except for those applications involving college or university teachers selected pursuant to a competitive recruitment and selection process, Schedule A occupations, and sheepherders) must attest, in addition to a number of other conditions of employment, to having conducted recruitment prior to filing the application.

The employer must recruit under the standards for professional occupations set forth in 20 CFR § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation. For all other occupations not normally requiring a bachelor’s or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at 20 CFR § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations.

The employer must prepare a recruitment report in which it categorizes the lawful job-related reasons for rejection of US applicants and provide the number of US applicants rejected in each category. The recruitment report does not have to identify the individual US workers who applied for the job opportunity. The recruitment report is not filed with the application, but is kept in the event that the DOL requests this information at a later date.

The employer has the option of filing an application electronically or by mail. However, the DOL recommends that employers file electronically. Not only is electronic filing faster, but it will also ensure the employer has provided all required information, as an electronic application cannot be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry. If the employer desires to file the application by mail, it will be filed with the processing center with responsibility for the state or territory where the job opportunity is located.

Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the National Processing Center. Applications filed electronically must, upon receipt of the labor certification issued by the DOL, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

The employer is required to retain all supporting documentation for five years from the date of filing the ETA Form 9089. If the DOL requires additional information or documentation, it will issue what is known as an Audit request.

If the appropriate National Processing Center approves the application, the ETA Form 9089 is "certified" (stamped) by the Certifying Officer and returned to the employer or employer’s representative who submitted the application. The date that the labor certification application is filed with the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date.

After approval of the labor certification, the employer must file an "Immigrant Petition for an Alien Worker" with the USCIS on immigration form I-140. The employer must attach the certified ETA Form 9089 to the completed I-140 and submit it, together with the appropriate filing fees and required supporting documentation, to the appropriate USCIS Service Center.

New rules provide a 180-day validity period for approved labor certifications. Therefore, employers must file form I-140 with USCIS within 180 calendar days after the date of approval of the labor certification by DOL.

There are a few occupations, known as Schedule A occupations, which do not require an individual labor certification. The DOL has already determined there are not sufficient US workers who are able, willing, qualified and available. In addition, Schedule A establishes that the employment of aliens in such occupations will not adversely affect the wages and working conditions of US workers similarly employed. These occupations include physical therapists, professional nurses, aliens of exceptional ability in the sciences or arts, and aliens of exceptional ability in the performing arts. An employer shall apply for a labor certification for a Schedule A occupation by filing ETA Form 9089, in duplicate, with the appropriate USCIS Service Center and not with the Department of Labor.

Each of the above EB1, EB2, and EB3 petitions must be filed on immigration Form I-140, Petition for Immigrant Worker. This must be filed with the immigration service center that has jurisdiction over the area of the alien's intended employment. The documentation required to be submitted with the petition is outlined in the regulations.