Office of International Student & Scholar Services

Permanent Residency: EB-2 and EB-3

EB-2: Members of the Professions holding an Advanced Degree, Individuals of Exceptional Ability and EB-3: Skilled Workers, Professionals, Other Workers


Applying for EB-2 and EB-3

Three-Step Application Process

The majority of EB-2 and EB-3 green card applications are a 3-step process.   

    • UToledo is responsible for filing and all costs associated with Step 1 and Step 2.  The sponsored employee is responsible for filing and all costs associated with Step 3.
    • All Green Card cases are assigned to outside counsel. 
    • For every employer/UToledo sponsored position, The University of Toledo must use only attorneys appointed by the Ohio Attorney General. No department or employee may use a private attorney for employer sponsored petitions unless the Green Card process is self-petitioned by the employee and not sponsored by UToledo.

 

Step 1. File the Labor Certification

File the Labor Certification (PERM) with the U.S. Department of Labor (DOL):  UToledo must obtain a Labor Certification from the DOL.  (This step has many subparts and is the most time-consuming.)

GENERAL REQUIREMENTS OF A LABOR CERTIFICATION (PERM)

The process begins with UToledo seeking a labor certification through the Department of Labor (DOL) using their Program Electronic Review Management system or (PERM).

Section 212(a) (5) of the Immigration and Nationality Act (INA) essentially states that a U.S. employer may hire a foreign national for a permanent position if they can obtain from the DOL, after testing the U.S. labor market, a certification that there are not enough workers in the U.S. who are “able, willing, qualified” and "the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers."--(From DOL Fact Sheet #26)

 

TYPES OF OFFERED POSITIONS UNDER (EB-2), LABOR CERTIFICATION

As to the differences between the Labor Certification processes, the duties of the position will determine if the petition is filed under "Special Handling" or "Basic Recruitment.”

 

"Special Handling": (Traditional Tenure Track, Faculty or teaching positions)

When an applicant is seeking permanent residence in a traditional tenure track, faculty or teaching position, the College or Department will have to show that this applicant was selected pursuant to a competitive recruitment and that he or she was the most qualified applicant. General Steps under “Special Handling”:

a.   Appointment of Assigned Counsel to assess the likelihood of the Labor Certification;

b.   Analysis of minimum requirements of the prospective employment, internal policies, and review of position description (The job offer must be full-time and permanent);

 c.  Employer Attestation/Agreement of Sponsorship and ability to fulfill employer obligations in the future (UToledo must have the ability to pay the promised wage in the future);

d.  The offered position may never be specifically tailored for any prospective employee;

e.  The prospective employee must meet the qualifications of the occupation;

f.  File and obtain the Prevailing Wage Determination (PWD) from the DOL;

g.  Specific Employment Based Recruitment Steps/ Advertisements and proper documentation of efforts by the Department: 

      • Printed advertisement (or 30 days of online advertisement) of offered position; including specific information about the position, in a national professional journal for the requisite time period. The University will also need to follow internal policy and follow standard recruitment methods (Diligent record keeping);                                                   
      • If a recruitment process does not initially take place or the initial recruitment steps do not meet the DOL guidelines, the department must go through another recruitment and re-selection process;                                                 
      • It’s common that this recruitment process must be completed well after the sponsored employee started his or her position with UToledo.

h.  A competitive recruitment report, which demonstrates clearly that the noncitizen/prospective employee was found more qualified than any and all U.S. workers that applied for the position.                                              

      • any recruitment must demonstrate a good faith testing of U.S labor market                                                           
      • The PERM must be submitted within 18 months of selection of the candidate

i.  Notice of Filing;

j.  Drafting, Review, and Filing of the PERM/Labor Certification with the DOL.

 “Special Handling” requires extensive documentation of the recruitment process by the Department. The sponsoring departments will have to provide copies of the advertisements and provide evidence that it was advertised and posted properly, as well as provide a detailed report regarding the number of total applicants and the lawful reasons why those applicants were not as qualified as the foreign national. The sponsoring Department is charged with ensuring that rules and regulations regarding recruitment are followed and properly documented. Consultation with the assigned attorney will be available. The College or Department shall be responsible for keeping copies of all advertisements, postings, resumes and other supporting documentation for at least 5 years.

 

"Basic Recruitment": (Non-Teaching Professional Positions)

Prior to filing a PERM or Labor Certification Application, UToledo must demonstrate that it adequately tested the labor market in the preceding six months without finding any qualified U.S. workers. Here, the test is ensuring that there were no U.S. applicants who were minimally qualified and who were ready and able to take the position on the terms offered.

Note

The standard for basic recruitment is dramatically different from the standard for special handling. In this scenario, UToledo shall not sponsor the Labor Certification if any minimally qualified U.S. worker applies for the posted position.

a.  Appointment of Assigned Counsel to assess the likelihood of the Labor Certification;

b.  Analysis of minimum requirements of the prospective employment, internal policies, and review of position description (the job offer must be full-time and permanent);

c.  Employer Attestation/Agreement of Sponsorship and ability to fulfill employer obligations in the future (UToledo must have the ability to pay the promised wage in the future);

d.  The offered position may never be specifically tailored for any prospective employee;

e.  The prospective employee must meet the qualifications of the occupation;

f.  File and obtain the Prevailing Wage Determination (PWD) from the DOL;

g.  Specific Employment Based Recruitment Steps/Advertisements and proper documentation of efforts by the Department:

–UToledo will need to perform at least six recruitment methods, which include but are not limited to the following:

        • Advertisement of the position in two print advertisements (i.e. 2 Sunday editions in the Toledo Blade);
        • 30 Day Job Order with the Ohio Department of Jobs and Family Services (ODJFS);
        • Internal Posting on The University of Toledo website;
        • A minimum of 3 other qualified recruitment methods from a list of 10 alternatives;

Note

Documentation and recording these recruitment steps is very important.  Please discuss with the assigned attorney steps that will need to be taken as to the contents of the advertisement, the duration each advertisement must remain up, and evidencing that the steps have been taken.

 h. Recruitment Report: A detailed report outlining in detail the recruitment procedure and the fact that no U.S. worker was minimally qualified for the posted position.

Note: Generally, this will require a description of recruitment steps taken, number of applications received, steps taken to contact lawfully rejected applicants timely (7 days from receipt of application); interview process of applicants, number of people hired, number of U.S. workers rejected, and the lawful job-related reason why they were rejected. Please discuss with the Assigned Counsel what steps must be taken as to applicants (job seekers) that may apply for the position. This is an outline and is not totally comprehensive as appointed counsel will advise as to the proper steps and regulations.

 i.  Internal Notice of Filing;

j.  Drafting, Review, and Filing of the PERM/Labor Certification with the DOL.  PERM must be filed within 180 days of selection of the candidate;

      • The date the Labor Certification is filed with the DOL, a “priority date” is established for the sponsored employee.  The priority date is important to determine when the individual can complete step 3, I-485 application, adjustment of status. 

 

Step 2: File I-140

File I-140, Immigrant Petition for Alien Worker, with USCIS:
Once UToledo obtains a Labor Certification with the Department of Labor, the I-140 can be filed with USCIS.  

 

Step 3: File I-485

File I-485, Application to Register Permanent Residence or Adjust Status, (the green card application) with USCIS.  The employee is responsible for filing and any fees in connection with the I-485 application:

Depending on the foreign national’s origin of birth, the adjustment of status may be backlogged for years(e.g. India and China historically have per country limitations).

Timeline:  Because the recruitment process and processing times of the labor certification are very time intensive, the Labor Certification process should begin with the Beneficiary having at least two years of H-1B time remaining. If the College or Department elects to sponsor a Labor Certification, then please be mindful of this timeline. It should be noted that the sponsoring Department may choose to initiate the process earlier if desired. The analysis of what type of employment based filing is most appropriate may vary. It is strongly recommended that at least one year is set aside solely for analysis, recruitment, and preparation of the employment based filing. Further, although subject to change, historically the processing of a PERM application may take up to eight months to be certified; this is if it is certified, which is not a guarantee.

 

To submit a Permanent Residency Request to OISSS, go to GREEN CARD REQUEST FORM AND AGREEMENT

Last Updated: 3/22/23