EB-2 & EB-3 Professionals

Step 1: Determine EB-2 or EB-3 eligibility
Step 2: Prepare EB-2 or EB-3 request
Step 3: FSIS processing (labor certification application)
Step 4: DOL processing
Step 5: FSIS processing (I-140 petition)
Step 6: USCIS processing
Step 7: Apply for U.S. permanent residence


Step 1: Determine EB-2 or EB-3 eligibility

The sponsorship processes for the EB-2 and EB-3 immigrant categories are nearly identical. The main differences between the two categories are its basic qualification requirements. For EB-2, the position must require an advanced degree or the international employee must possess exceptional ability in the sciences, arts, or business. To qualify for EB-3, the position must require at least a bachelor’s degree.

There are two main parts to the EB-2 and EB-3 processes. The first is the granting of labor certification by the U.S. Department of Labor (DOL); the second is the approval of an I-140 immigrant petition by the U.S. Citizenship and Immigration Services (USCIS).

The UH department must complete the following before it can submit an EB-2 or EB-3 sponsorship request to FSIS:

  • Confirm that the recruitment or reselection process was conducted and documented according to the DOL’s requirements for teaching positions or non-teaching positions (as applicable) and
  • Review the position description and the international employee’s qualifications to confirm that the employee possessed all minimum and desirable qualifications (MQs and DQs) for the position by the selection date (i.e. date of the offer letter or first signature on Form 17, whichever is earlier).

If both above requirements are met, the department can proceed to Step 2 below.

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Step 2: Prepare EB-2 request

UH colleges, schools, departments, and units should follow each step below to complete and submit EB-2 or EB-3 requests to FSIS.

1 The UH department initiates the EB-2 or EB-3 request.

The UH department should work with the international employee to obtain the necessary information and documentation for the EB-2 or EB-3 request packet. The department should complete/gather its portion of the documents listed on the appropriate request form:

2 The HR specialist reviews the EB-2 or EB-3 request, attaches documents, and submits the packet to FSIS by the applicable deadline.

The UH department should forward its portion of the EB-2 or EB-3 request packet to the Human Resources specialist for the college/school/unit. The HR specialist reviews these documents and attaches any additional documents.

The HR specialist should send the complete request packet to FSIS, Attn: Isis, PSB 102-106.

Deadlines:

  • Submit teaching requests to FSIS no later than one year after the selection date (date of the offer letter or first signature on Form 17, whichever is earlier).
  • Submit non-teaching requests to FSIS no later than three months after the posting of the first ad.

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Step 3: FSIS processing (labor certification application)

After FSIS receives the request packet from the HR specialist, we will complete the following steps to file the labor certification application with the U.S. Department of Labor (DOL):

Procedures Average timeline
1 FSIS reviews the request and may ask for further documentation from the department and/or the employee, if needed. 1 month
2 Teaching positions: FSIS requests a prevailing wage determination (PWD) from the U.S. Department of Labor. (For non-teaching positions, this step should already have been done before the request is submitted, at the same time the ads are posted.) 2 to 3 months after receiving request
3 FSIS completes a draft labor certification application and notice of filing requirements:

  • Union positions: Notice of filing is provided to the appropriate union.
  • Non-union positions (e.g. executive/managerial): FSIS prepares public notices that the department must post at the worksite for 10 consecutive business days.
2 weeks after DOL issues PWD
4 FSIS allows the mandatory notice waiting period to pass:

  • Union positions: Must wait at least 30 days up to 180 days after the date the notice was provided to the union.
  • Non-union positions: Must wait at least 30 days after the last day of 10-day posting period.
30 days
5 FSIS emails the employee to confirm current information; employee replies to confirm. Few days or longer after the end of the notice period
6 FSIS electronically submits the labor certification application to DOL. Few days after employee replies

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Step 4: DOL processing

After FSIS electronically submits the application, the DOL will review the application. The DOL’s initial processing time is currently six to eight months, which is subject to change depending on workload. DOL may certify, audit, or deny the application after the initial processing processing period. If the application is audited, DOL will notify FSIS by mail and UH will have 30 days from the audit notice’s date to provide the requested information. DOL may take as long as two years or more to reach a decision on an audited application.

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Step 5: FSIS processing (I-140 petition)

If the DOL grants labor certification, FSIS can proceed with preparing the I-140 petition to be filed with USCIS. Following are the next steps in the process:

Procedures Average Timeline
1 FSIS emails the employee to confirm current information and to schedule an appointment at which the employee will sign the labor certification and provide the I-140 filing fee(s) and a pre-paid mailing label for the petition. Few days or longer
2 After receiving the employee’s responses, FSIS completes Form I-140 Immigrant Petition for Alien Worker, Form I-907 Request for Premium Processing (optional), and a petition cover letter and attaches the supporting documents. Within 2 weeks after employee replies to FSIS’s email
3 Employee attends appointment with FSIS to sign the labor certification and provide the filing fee(s) and mailing label. Within a few weeks after employee replies to FSIS’s email
4 FSIS mails the EB-2 or EB-3 petition to USCIS and file drops a copy of it to the employee and the HR specialist for the unit. Same day or day after petition is finished

Note: At this step in the process, certain employees may be eligible to concurrently file a Form I-485 adjustment of status application with the I-140 petition. See Step 7 below for more details.

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Step 6: USCIS processing

Upon receiving the EB-2 or EB-3 petition, USCIS will conduct an initial review to ensure the petition has been filed with the appropriate fee. If USCIS determines the petition has been properly filed, it will mail a receipt notice to FSIS. FSIS will provide a copy of the receipt to the employee and to the HR specialist.

USCIS adjudication

Under regular processing, it generally takes USCIS 4-8 months to adjudicate petitions.

If premium processing service is requested, USCIS will act on the petition within 15 calendar days. (“Act on” = approve, deny, request further evidence, or notify of intent to deny.) USCIS offers this service for an additional fee.

While the petition is pending, departments can check its status using the receipt number and view average processing times on USCIS’s case status website.

If the petition is approved, USCIS will mail an EB-2 or EB-3 approval notice (Form I-797 Notice of Action) to FSIS. FSIS will email a copy of the notice and information about the next steps to the HR specialist and the employee. It is important to note that approval of an EB-2 or EB-3 petition does not grant a person legal status in the U.S. The employee must continue to have valid status and work authorization in the U.S. until permanent residence is obtained.

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Step 7: Apply for U.S. permanent residence

The employee can apply for permanent residence by one of these two methods:

Adjustment of status Consular processing
  • Employee files a Form I-485 application with USCIS while remaining in the U.S. Approval of the I-485 will grant permanent residence.
  • Check USCIS’s Adjustment of Status Filing Chart for priority date status.
  • I-485 may be filed concurrently with the I-140 petition if the priority date is current.
  • Police clearance reports are not required.
  • Employee applies for an immigrant visa at a U.S. embassy or consulate abroad. After the visa is issued, the worker presents it at a U.S. port of entry and is admitted as a permanent resident.
  • Check U.S. Department of State’s Visa Bulletin for priority date status.
  • Immigrant visa application must be submitted after the I-140 petition is approved; no concurrent filing with I-140.
  • Police clearance reports are required with the visa application.

Effect of unauthorized employment or status

If the employee has maintained a valid nonimmigrant status throughout their stay in the U.S. and is currently in the U.S. in a qualifying nonimmigrant status, adjustment of status or consular processing are both options for the final stage of the permanent residence process. However, if the worker has not maintained status, has engaged in unauthorized employment, or has violated the terms and conditions of admission for a total period of more than 180 days, they may not be eligible to adjust status in the U.S. In such a case, the only option will be consular processing.

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