Employment-Based Immigration (EB-3)

Employment-based immigration (EB-3) cannot proceed based on the applicant's intent alone.

A job offer from a U.S. employer and a Labor Certification are required.

A labor certification is a procedure in which a U.S. employer demonstrates that no qualified U.S. worker is available for the position it seeks to fill, and that employing a foreign worker will not have an adverse effect on the U.S. labor market.

Labor certification is issued by the U.S. Department of Labor (DOL), and the ETA-9089 form (PERM Certification, an application for permanent employment certification) must be submitted.

In addition, as of June 1, 2023, filing and approval are conducted online through the DOL's FLAG system.

The approved ETA-9089 form is filed together with the EB-3 petition (I-140).

Unlike the general employment-based immigration (EB-3) procedure, certain occupations are exempt from labor certification.

These are called Schedule A occupations, because the U.S. Department of Labor has already recognized that there are not enough U.S. workers for these occupations.

The current Schedule A occupations are as follows.

• Group I : professional nurses and physical therapists
• Group II : individuals of exceptional ability in the sciences or arts, performing arts professionals, and others

If Schedule A applies, the applicant completes the ETA-9089 form and attaches it to the I-140 petition; rather than an 'approved labor certification,' a 'completed but unapproved ETA-9089 form' is submitted.

A valid Prevailing Wage tracking number must also be included.

After obtaining labor certification (or, if Schedule A applies, a prepared ETA-9089), the U.S. employer must file an immigrant petition (I-140 Petition for Alien Worker) with U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign worker.

After the petition is approved, it is transferred to the National Visa Center (NVC), which assigns a case number to the petition.

The applicant must wait according to the priority date (the date the ETA-9089 was received).

In the case of employment-based immigration (EB-3), a waiting period arises depending on the per-country and per-category quotas.

In particular, because employment-based immigration (EB-3) sees high application demand, waiting several years is also common.

If the NVC notifies the applicant that the priority date has become current, the applicant must complete and submit the choice of address and agent form (DS-261).

If the applicant already has a legal representative, this step is omitted.

Next, the applicant completes the immigrant visa application (DS-260) and pays the visa fee, various translation and copying costs, the medical examination fee, and other charges.

In this case, the fees are non-refundable, and payment must be made according to the separate payment instructions designated by the NVC.

Once all required documents are submitted and the fees are paid, the NVC schedules the visa interview at the U.S. embassy or consulate.

Before the interview, the applicant must undergo a medical examination at an embassy-authorized hospital, and complete the vaccinations required by age.

In Korea, the embassy-authorized hospitals are Gangnam Severance Hospital, Sinchon Yonsei Severance Hospital, Yeouido St. Mary's Hospital, and Busan Haeundae Paik Hospital.

On the day of the interview, the applicant must bring a valid passport with at least 6 months remaining before expiration, the DS-260 confirmation, original civil documents such as birth and marriage records, their translations, financial support documents, the job offer, and similar items.

Once the employment-based immigration (EB-3) petition is approved, the principal applicant's spouse and unmarried children under 21 may also apply for immigrant visas.

Family members must likewise complete the DS-260, pay the fees, and undergo the medical examination and interview.

If the submission of false documents, concealment of facts, overstaying a prior visa, or a criminal record (particularly drug offenses or felonies) is confirmed, the visa may be denied.

Because misrepresentation or fraud may result in permanent inadmissibility in the future, the petition must be prepared strictly on the basis of facts.

For EB-3, the waiting period varies depending on the annual quota and the per-country allocation.

From document preparation, labor certification approval, I-140 approval, NVC pre-processing, and the waiting period after the visa interview, the process can take as long as 4 to 5 years, so thorough advance review and strategy planning with an immigration attorney are critical.

In addition, until the visa is issued, the applicant should not make changes to their status, such as hastily changing jobs or disposing of property to relocate.

Because an immigrant visa is valid for 6 months from the date of issuance, it is advisable to check the visa and residence status and renew them in a timely manner.

EB-3 employment-based immigration is a program open to a wide range of workers according to their education and experience requirements.

That said, the employer's active cooperation, a lawful labor certification, and thorough preparation of supporting documents are key to a successful outcome.

By preparing step by step with advice from a foreign attorney qualified in U.S. law and an immigration attorney with extensive experience in employment immigration consultation and practice, applicants can move one step closer to obtaining U.S. permanent residence.