Employer Responsibilities Post-Visa Approval

The EB-3 visa provides an opportunity for foreign nationals to live and work in the United States on a permanent basis, under employer sponsorship. Unlike other employment-based visas that focus on higher-level positions or extraordinary abilities, the EB-3 category serves skilled workers, professionals, and other workers (unskilled labor). At the heart of the EB-3 visa process is the role of the

EB-3 Visa Sponsor a U.S.-based employer who plays a critical part in petitioning for a foreign worker’s entry into the country. In this extended guide, we’ll explore more detailed insights into the sponsor’s responsibilities, the steps involved, and how both employers and foreign workers can successfully navigate the EB-3 sponsorship process.

The Importance of the EB-3 Visa Sponsor

The employer, or EB-3 visa sponsor, is the foundation for the entire EB-3 visa process. Without a qualified sponsor, an applicant cannot move forward with the visa application. The role of the sponsor is multifaceted and involves much more than simply offering a job. They must comply with several U.S. labor laws and immigration regulations while ensuring the foreign worker meets the necessary qualifications for the position.

In essence, the EB-3 visa sponsor:

Initiates the visa process by offering a permanent, full-time job.
Files the necessary documents with the U.S. Citizenship and Immigration Services (USCIS), including the Labor Certification and the I-140 petition.
Proves financial capability to pay the offered wage and maintain the worker’s employment.
Ensures compliance with U.S. labor laws and ensures that foreign employment does not adversely affect U.S. workers.

Categories of EB-3 Visa Workers

The EB-3 visa category is designed to serve three distinct types of workers:

Skilled Workers: Individuals with at least two years of job training or experience that is required for the position. These workers typically hold positions that require specialized knowledge or expertise.
Professionals: Applicants who hold a U.S. bachelor’s degree or its foreign equivalent and are coming to the U.S. to work in professional roles that require such a degree.
Other Workers (Unskilled Laborers): Foreign workers who fill positions that require less than two years of training or experience. These roles are often manual or labor-intensive positions that do not require specialized skills or education.

The employer must determine the specific category that applies to the job in question, as each category has different criteria for approval.

The Role of an EB-3 Visa Sponsor in the Process

Step 1: Labor Certification (PERM)

The first step in the EB-3 sponsorship process is obtaining Labor Certification from the U.S. Department of Labor (DOL). This step ensures that there are no qualified U.S. workers available to take the position being offered to the foreign worker. The Labor Certification application is known as the PERM (Program Electronic Review Management) process.

Responsibilities of the EB-3 Sponsor in this Stage:

Recruitment of U.S. Workers: The employer must take steps to recruit U.S. workers for the job. This usually involves placing job advertisements in local newspapers, on online job boards, and other relevant media. The employer must show that they made a good-faith effort to hire U.S. workers before turning to foreign labor.
Wage Offer: The employer must ensure the job offers a wage that meets or exceeds the prevailing wage for that role, as determined by the DOL.
Documentation: The sponsor must maintain records of all recruitment efforts and prove that no qualified U.S. workers applied or were found to be suitable for the position.

Once the employer has completed the recruitment process and confirmed that no U.S. workers were available, they can submit the PERM application. If approved, the employer receives the Labor Certification, which is necessary for filing the I-140 petition.

Step 2: Filing the I-140 Petition (Immigrant Petition for Alien Worker)

The next step after obtaining Labor Certification is filing the I-140 Petition. This petition is the official request to the USCIS to grant the foreign worker an immigrant visa or permanent residency.

Key Responsibilities of the Sponsor:

Submitting Supporting Documentation: The employer must submit the following:
- Proof of the foreign worker’s qualifications (education, work experience, etc.)
- Labor Certification approval
- Evidence that the employer can pay the wage specified in the job offer (e.g., financial statements or tax returns).
Paying Filing Fees: The employer is typically responsible for paying the I-140 filing fees. This ensures the process moves forward.
Demonstrating Financial Stability: The employer must prove their financial ability to pay the offered wage to the foreign worker by submitting financial documentation such as tax returns, income statements, and bank records.

Once the petition is submitted, USCIS will review it and determine whether the foreign worker meets the eligibility requirements for the EB-3 visa category.

Step 3: Priority Date and Visa Bulletin

Once the I-140 petition is approved, the foreign worker will receive a priority date, which establishes their place in line for an immigrant visa. The priority date is determined by the date the I-140 petition is filed with USCIS.

Because there are annual limits on the number of EB-3 visas issued, there may be a wait for the priority date to become “current” or eligible for a visa. This can result in significant delays, especially for workers from countries with high demand for immigrant visas (e.g., India or China).

Responsibilities of the Sponsor:

Monitoring the Visa Bulletin: Employers must stay updated on the Visa Bulletin, which is issued monthly by the U.S. Department of State. This bulletin informs sponsors and applicants when a priority date is current, signaling that the worker can move forward with the next steps in the visa process.

Step 4: Adjustment of Status or Consular Processing

Once the priority date becomes current, the foreign worker can either apply for Adjustment of Status (AOS) if they are already in the U.S. or go through Consular Processing if they are outside the U.S.

Adjustment of Status (AOS): This process allows foreign workers who are already in the U.S. on a temporary visa (e.g., H-1B) to apply for permanent resident status without leaving the country. The foreign worker files Form I-485 with USCIS to adjust their status.
Consular Processing: If the foreign worker is outside the U.S., they must apply for an immigrant visa at a U.S. consulate or embassy in their home country. This process involves an interview, medical examination, and background checks.

Sponsor’s Role:

Providing Required Documentation: The employer will need to provide further documentation to support the worker’s application, such as the job offer letter, I-140 approval notice, and proof of the employer’s continued ability to pay the offered wage.
Supporting the Worker’s Application: The employer should continue to assist the foreign worker in the visa application process, ensuring that all documentation is in order and meeting USCIS or consular requirements.

Step 5: Receiving the EB-3 Visa

If the EB-3 visa petition is successful, the foreign worker will receive their visa (if outside the U.S.) or be granted permanent resident status (if adjusting their status in the U.S.). At this point, the foreign worker can begin their new job in the U.S. and continue to live and work there as a permanent resident.

After the worker is granted their EB-3 visa, the sponsor’s responsibilities are far from over. The employer must maintain the worker’s job under the same terms outlined in the EB-3 petition.

Ongoing Employment: The employer must ensure that the job offer remains valid and that the worker is employed in the role for which they received the EB-3 visa. Any changes to the job duties, wages, or other conditions may require additional filing with USCIS.
Monitoring the Worker’s Status: The employer must ensure the foreign worker remains employed and compliant with U.S. immigration regulations, such as maintaining lawful permanent resident status.