EB3: Other Workers
Because they fall under a diﬀerent visa allocation, this category of EB3s is treated separately from the Skilled Worker and Professional EB3s.
The “Other Worker” category is for positions that do not require a bachelor’s degree and require less than two years of experience. All other worker petitions require the ﬁling of a Labor Certiﬁcation with the Department of Labor. As such, the petitioning employer must comply with the advertising and recruitment requirements of “PERM.” The only break that this category receives is that employers need only advertise for two consecutive Sunday editions of a newspaper of general circulation in the geographical area where the position is located. They do not have to do the other three forms of advertising that are required for the other categories.
Some “Other Worker” positions will trigger either an audit, supervised recruitment, or both with the Department of Labor, because the Department of Labor believes that these positions are “unskilled” and that there are therefore suﬃcient workers in the US who are able and willing to do the job.
For others, it is next to impossible to succeed. An example of these is a health care aide at a private home. The government expects and requires that the employer have a Federal Employer Identiﬁcation Number, and many states will also require a similar number with the state. Additionally, the need for the job will have to be proven several times. First, with the Department of Labor. Then, with USCIS at the time of ﬁling of the I-140 petition. And ﬁnally, with USCIS or the Department of State when the priority date becomes current and one is ready to immigrate. Citizens of China, India and Philippines face long waits for their priority date to become current, meaning that the need for the job may no longer exist when the priority date becomes current, or the employer may have passed away. Both of these events are fatal to the case.
These cases are complex, particularly if the Department of Labor audits the Labor Certiﬁcation and/or requires supervised recruitment. Employers who wish to pursue an EB3, Other Worker case should have an attorney handle the case. To get started, please contact our ﬁrm.