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Employment-Based Permanent Residency – Second and Third Preference

Congress has conferred the right of U.S. Companies to sponsor foreign nationals for permanent residence (green card). The first step in this process is known as PERM, which entails filing a permanent labor certification application with the U.S. Department of Labor (DOL).

The PERM Application can filed under the Second or Third Preference Group.

The Second Preference Group, EB-2

The EB-2 classification is the most common classification. Significant waiting times are rare and limited to only a few countries, such as India and China. Therefore, EB-2 is a great classification if the immigrant meets the following requirements:

  • Advanced degree in professional field(s); or
  • Exceptional Ability;

Advanced degree means any U.S., or foreign equivalent, academic or professional degree above a bachelor’s level. Alternatively, the applicant may possess a bachelor’s degree and five (5) years of progressive experience in the field.

Exceptional Ability, including professional athletes, is someone that possesses exception ability in the Arts. There are a host of evidence requirements for proving an immigrant possesses an “Exceptional Ability” for the purposes of EB-2 classification, so contact one of our experienced immigration attorneys today for further information.

The Third Preference Group, EB-3

The EB-3 classification is a good option, but certainly is more limited than the EB-2 classification. EB-3 is the classification applicable to immigrations meeting one of the following requirements:

  • U.S. or foreign equivalent of a bachelor’s degree;
  • Skilled workers in an occupation requiring at least 2-years of experience; or
  • Unskilled workers requiring less than 2-years of experience.

The EB-3 classification for unskilled workers is limited to 10,000 of the 40,000 allocated in the EB-3 preference group per year. Determining the proper classification for the application can be complicated and failure to properly do so can yield adverse results, both to the applicant and to the prospective employer. So, it is important to contact our attorneys to discuss your available options.

Application Process

The process for filing a PERM application can be rather complex. It is important to speak with one of our Attorneys to ensure you comply with all PERM regulations. Each of the requirements below have specific regulatory requirements that must be met to receive a certified PERM application from the DOL.

All PERM application process in the EB-2 and EB-3 category have the same basic requirements:

  1. The Employer must typically be offering full-time and permanent employment.
  2. The Employer must be able to pay the prevailing wage, which is determined by the DOL for the proffered position by filing an Prevailing Wage Determination.
  3. The Employer must attest that there are no available qualified, willing, and able U.S. workers to take the position
    1. This requires that the Employer test the labor market through advertisement and other specified recruitment efforts.
    2. Note that certain positions are considered to have a chronic shortage, such as nurses and physical therapists, so the position is “pre-certified” and the employer is not required to test the labor market.

If all the above requirements have been met, then the Employer would file the PERM application with the DOL. Once the PERM application is approved by DOL, the Employer would file the I-140 Petition for Immigrant Worker with the USCIS.

Our Attorneys have extensive experience in PERM applications and would love to discuss your immigration needs today.


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