For employers
EB-2 and EB-3 Immigrant Petitions
The petition that follows a certified PERM. Straightforward in outline, and routinely lost on the documentation nobody assembled at the time.
- 8 C.F.R. § 204.5(g) — ability to pay
- Current USCIS Policy Manual treatment of EB-2 and EB-3 classification and successor in interest
- Current statutory porting provision and the required pending period
- Current Visa Bulletin mechanics before describing priority date waits
What the category requires
With a certified labor certification in hand, the employer files an immigrant petition establishing three things: that the job opportunity is real and continues on the certified terms, that the beneficiary met the stated minimum requirements before the qualifying employment began, and that the employer has the financial ability to pay the proffered wage.
Classification follows the requirements stated on the labor certification, not the employer's preference at filing time. That is a reason to think about classification while drafting requirements, well before the petition.
Established from the priority date forward and documented annually. This is the most underrated failure point in the category — a technically clean petition fails because the financial record was never organized.
Where the sponsoring entity has been acquired, merged, or restructured, the successor must establish that it assumed the predecessor's rights and obligations and that the job opportunity survived the transaction. Plan this before the deal closes, not after.
After the adjustment application has been pending for the required period, a beneficiary may change employers into a same-or-similar occupation without losing the petition. Employers should understand the practical effect of this before treating an approved I-140 as a retention tool.
Authority: 8 C.F.R. § 204.5(g) — ability to pay. Verify against the current text before relying on it.
Where cases go wrong
- Financial documentation assembled at petition time rather than maintained from the priority date
- Experience letters that do not establish the beneficiary met the requirements before the qualifying employment began
- Experience gained with the petitioning employer counted toward requirements it cannot support
- Corporate changes between certification and petition that were never documented as a successor relationship
- Job descriptions in the petition that drift from the certified terms
Priority dates and country of birth
Approval of the petition and availability of an immigrant visa are two separate questions. Depending on classification and country of birth, the wait between them ranges from negligible to very long, and it drives everything about how you plan the employee's nonimmigrant status in the meantime.
For employees facing a long wait, the question worth asking early is whether a category with no labor certification requirement is available instead.
If you've received a Request for Evidence
EB-2 and EB-3 RFEs concentrate on the two things the petition asserts and the file often does not prove: the money and the beneficiary's prior qualifications.
What these requests typically ask for
- Ability to pay the proffered wage for every year from the priority date forward
- Evidence the beneficiary held the required degree and experience before the qualifying employment began
- Documentation of a successor-in-interest relationship following a corporate change
- Confirmation that the job opportunity continues on the certified terms
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
Related
PERM labor certification
Prevailing wage strategy, recruitment design and documentation, ETA-9089 preparation, audit and supervised recruitment response.
Read more →Green card sponsorship overview
PERM, EB-2, EB-3, EB-1B, and EB-1C — plus the two categories that require no sponsorship at all.
Read more →EB-1C multinational manager or executive
Multinational managers and executives. No labor certification required.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts