EB-3 For Client Employed By A Small Business

• Client’s employers are a small company, around 12 total employees
• There is a complicated process for applying for Labor Certification from the Department of Labor, causing long wait times for cases to be resolved
• USCIS has toughened policies toward employment-based visas/green cards, they are rejecting cases and sending RFE’s at a high rate

BACKGROUND

Like many legal immigration options in 2019, securing an EB-3 visa is becoming more and more difficult. While the debate over illegal immigration in the United States rages ever onward, the current presidential administration in 2019 is also, more quietly, making employment-based immigration options much more difficult to obtain. Without changes to the laws surrounding these options, enforcement of standards has changed to the point where companies across the U.S. are seeing record rejection rates and record rates of Requests for Evidence (RFE) from the United States Citizenship and Immigration Services (USCIS). While this has extended to other visa types, such as the H-1B, every Employment-Based visa type (1-5) has been affected by this change in enforcement. This is what our client, Mr. Li, was facing when he and his employer wanted to file for an EB-3 visa. Unfortunately for Mr. Li, EB-3 visas not only face greater scrutiny in this day and age, but any application for an EB-3 must also be accompanied by a Labor Certification from the U.S. Department of Labor (DOL). A Labor Certification basically states that the employer has proven that there are no U.S.-based workers available and willing to take the offered job. If that sounds difficult to determine and prove, that’s because it is. This is a difficult process for even the largest, most established businesses. Mr. Li’s potential employers were a small electronics company of about 12 people; thus, they did not have the resources to make a labor certification easy for themselves. When Mr. Li contacted our office, he was very nervous about completing this application, and wanted to know if could help him. After we reviewed his case, we let him know of these potential roadblocks. But we also knew that our experience in handling these difficult cases meant that we would very likely be able to help him, so we offered to take on his case and he accepted our services.

KEYS TO SUCCESS

The biggest key to success in these cases is simply to have an experienced and professional attorney and their team representing the client. Experience is a big part of whether or not an attorney will be able to help a client in cases like these, because any attorney who is used to cookie-cutter forms, template assembly lines, or similar simple immigration processes is not going to be able to help clients like Mr. Li. They will try the most basic way of approaching a labor certification and an EB-3 application and shrug their shoulders when the attempt fails and say that no more can be done. Our firm specializes in taking on difficult cases. We know that every beneficiary of an immigration visa is going to be different from one another, and every company that comes to us through their employees is going to be different than one another. Since we use custom application plans for each case, when a difficult one like Mr. Li’s comes across our desk, we are readily prepared for it.

We sat with Mr. Li and his employers and mapped out a road to success. We wanted to make sure that the labor certification was completely taken care of first of all. To get a labor certification, an employer must develop a job description, set an appropriate wage level, conduct recruitment, file for labor certification, and wait for the DOL to make a decision. We worked with Mr. Li’s employers to tailor their job description and wage level appropriately for the position that they wanted Mr. Li to fill. While we waited for them to conduct recruitment after position, we gave Mr. Li and his employers advice on what documents they were going to need for the EB-3. We wanted to make sure that the company would have their tax returns, organizational chart, and company profile ready to go once the labor certification came through, and we helped them develop the necessary documents that they did not have, such as the organizational chart. For Mr. Li, we wanted to make sure he had copies of his diploma, transcript, prior work experience, passport, I-94, tax returns, and his dependents’ passports ready as well.

Finally, we drafted a letter of support from Mr. Li’s employers for Mr. Li’s EB-3 application. It is not simply enough to have the documentation present of a case officer to look at. A case officer is not going to make the argument for the case for us, Mr. Li and his employer have to be able to argue the case for themselves. Fortunately, we know exactly how they can do that successfully, as we have helped thousands of clients over the years do just that. The letter of support included all the documentation previously mentioned as exhibits to support each section of the letter. When introducing the company as Mr. Li’s petitioner, we included the company profile, their tax returns, and their organizational chart. When we detailed the position Mr. Li was applying for, we made sure to include space for the on-coming labor certification and space to show that his position was properly defined according to the standards of the Occupational Outlook Handbook, a standard resource USCIS case officers will recognize. Finally, we ensured that the case officer understood that Mr. Li met all the qualifications of the EB-3, including the qualification of needing a bachelor’s degree or equivalent, and that the position required the same. We included Mr. Li’s documentation with that section of the letter.

OUTCOME

The first hurdle was receiving the labor certification. Many cases can be delayed by employers not understanding the requirements of getting a labor certification, or by extended recruitment periods, or by any number of obstacles on the DOL’s side. This process can take upwards of six months and is even subject to audits by the DOL. Mr. Li’s certification, with no notification of an audit, came in just four months. USCIS approved his visa in just another four short months. All the nerves Mr. Li had experienced finally drained from him, and he was finally able to live his American Dream. He could not be more thankful for how diligently Tsang & Associates worked for his dream.