Successful EB-3 Visa For A Chef

Hi everyone, my name is Grace Chang, and I’m an attorney here at Tsang & Associates.

Today, we’re going to be talking about an EB-3 PERM case for a cook. This case was super challenging because not only was the position very difficult to craft in the beginning, but there were also challenges due to the employer being located in a more rural area. Finding the proper recruitment methods was a challenge, and there were many other issues that I can’t wait to share with you. Let’s get to it.

One of the challenges of this case was that the employer was located in a more rural area. If you’re familiar with PERM, one of the first recruitment steps is the Sunday ads. The requirement is to post an ad in the newspaper with the widest general circulation that publishes on Sunday. However, in some rural areas, there isn’t a newspaper that runs on Sunday.

In those situations, you’re allowed to recruit in a newspaper of general circulation that runs on a Saturday or has a weekend edition. We had to do extensive research, calling different newspapers and reaching out to news staff to ask: “Do you run on Sunday? What are your circulation numbers?” Thankfully, we found a nearby newspaper that had a Saturday edition, so we were able to run recruitment there.

Interestingly, there was another newspaper about 50 miles away from the employer that had Sunday ads. The dilemma was do we run the ad in the newspaper that had less circulation with Saturday ads closer to where the employer was located or do we run it in the newspaper that might be farther away, had bigger circulation, but also ran on a Sunday.

The point of the Sunday ads or any ads really to determine which method of advertising is going to reach the widest audience or the candidates most likely to apply for the position. And so we thought that reaching out to a newspaper of wide circulation, even though it’s not the largest circulation, but still a wide circulation in the general vicinity of the restaurant was more likely to attract a U.S. candidate for the position. Now strategically, we have to balance that out. 

Let’s say we went with the newspaper that was farther of away but a Sunday newspaper, the Department of Labor could say, “well even though it has wider circulation, people in that area may not be willing to commute 50 miles to work at this restaurant, so it’s actually not the ideal paper for recruitment.”

Actually we talked to another attorney who had the same dilemma as us. Had an employer that was located in the same city as our employer, who did the recruitment with the other newspaper with the Sunday circulation, and actually, that case got denied.

We decided to go with the Saturday newspaper, and it turns out we made the right choice because the labor cert was approved without an audit.

Because this was a chef position, it’s a nonprofessional position, which means there are only three mandatory ads: two consecutive Saturday or Sunday ads. You also have to post it on the State Workforce Agency job board—every state has a job board open to anyone in the state looking for jobs and for employers to post jobs for at least 30 days. Additionally, you must do a notice of filing, which means you have to post a notice within the organization so that employees within the company can apply for the position.

Another challenge we faced in this case was that the candidate had worked for multiple restaurants across different states for a long time. When we built out his employment history to prove he had the required experience for this position, it was difficult to obtain exact dates and objective evidence to back it up.

After multiple attempts, we assembled a team to go through hundreds of documents, including all his pay stubs from the past six or seven years, to piece together enough evidence to show he had the experience required for this position.

Some of the documents you want to have to prove your experience for a PERM case is one, first of all, your employment verification letters. The guidelines are very clear on what that letter has to have. It has to be on letterhead, has to be signed. It has to say the name of the job title of the position, specific job duties, the length of employment. So you want to have an exact start and end date, and you also want to mention terms of employment. So was this paid, was this part time, was this full time, number of hours. So all this information needs to be in the employment verification letter.

We also ask for pay stubs. We ask for W2 forms. If the employment was abroad, then I would also ask for foreign pay stubs, tax returns, or, I’ve also used documents like pension statements. Some countries, if you enroll in the national pension fund they’ll write the name of the employer and the dates of employment on an official document. So as long as it’s an official document, we can use that.

This didn’t apply to this case, but I know in other cases sometimes it’s hard to get an employment verification letter, sometimes HR isn’t willing to sign it, or maybe the supervisor you worked with is no longer there, or the company has closed down. What do you do in those types of situations? Well you can submit two affidavits from people who have personal knowledge of your position at this company. So it could be former supervisors, who might have moved on to different companies, it might be former colleagues.

You get two affidavits and proof that they have personal knowledge of what you have done. Again, have similar information or the same information that you would typically need in an employment verification letter.  Make sure it has the name of the person who is signing the affidavit, Has their name and their address. I always recommend that clients get it notarized if possible to make it as official as possible.  Submit documents that show that this person worked there, maybe they can give you their W2 forms or their business cards, something that ties them to that organization.

Now back to our case, thankfully the beneficiary was able to gather all of his tax returns, gather all of his pay stubs. And so we had to build it out. Now he had jobs over six or seven years, and so we had to make sure that we’re counting the correct experience for the exact job that we need, that’s relevant to our specific case. And we had to do a lot of detective work, but at the end of the day we created a chart and thankfully it added up and he did have more than the required experience.

We put that information on the labor cert and then we were able to use that for the I-140 and again the case was approved without any questions on that.

Feel free to reach out to our firm if you have questions about your PERM case or about this PERM case. We’d love to answer your questions and I hope to see you next time.