212(a)(5)(A) EB-3 Refusals
This is one of the most “popular” visa refusal categories, with thousands of skilled, unskilled, and professional workers denied immigrant visas by consular officers each year under Section 212(a)(5)(A) of the Immigration and Nationality Act. But it shouldn’t be so.
Although these 5A denials apply to the EB-2 exceptional ability category as well, 5A is usually invoked against applicants in the EB-3 category. Applicants in the EB-3 category run the gamut, including architects, engineers, computer scientists, lawyers, journalists, restaurant workers, truck drivers, janitors, farmworkers, food processing, health care aides, and housecleaners. Skilled workers must have at least 2 years of job experience or training. Professionals must have at least a baccalaureate degree or equivalent and such degree is normally required for the occupation. Unskilled workers have less than 2 years of experience or training in a position that is permanent, i.e., not temporary or seasonal. Because of the quota limits for this category and the overwhelming demand that exceeds supply of these visas, there are often visa backlogs — long wait times just to apply for a visa. This obviously raises the stakes for the employer and the visa beneficiary. After having waded through a years-long process, a visa refusal can be devastating.
The EB-3 process is relatively straightforward. For each of the EB-3 positions, the Department of Labor reviews an application for permanent labor certification (PERM), ensuring that 1) the worker has the minimum qualifications for the position offered; 2) there are no qualified US workers available for the full-time position; and 3) the worker will be paid the prevailing wage. Upon DOL approval, the US employer submits an I-140 petition to USCIS. After USCIS approves the petition, the worker is able to apply for an immigrant visa once a visa number becomes available.
The consular role in the EB-3 visa process is supposed to be limited. The consul is only tasked with ensuring that there has not been fraud, checking for material inaccuracies in the application process, and verifying that the job offer is still valid. But consuls routinely overstep this role, believing that DOL and USCIS are too lenient in granting approvals. They feel that this category of immigration is regularly abused by employers in the United States. Because this is a permanent job offer with a green card at stake, not a temporary visa, the consuls believe that the scrutiny level should be much higher. They are concerned that an American worker may be supplanted, or find it hard to believe that an American worker is not available for the position offered. As a result, the consuls adopt an extremely narrow view on who can qualify.
There are numerous reasons — legitimate and not-so-legitimate — that consuls cite to when denying these visas. For example, when reviewing an EB-3 immigrant visa application, a consul may come to the conclusion that the
- applicant cannot speak English adequately for the job
- circumstances changed materially since the filing of the permanent labor certification application
- applicant does not have any work experience or any experience in the field in which he or she will work in the US and therefore is not qualified for the position
- applicant is related to the employer and that this information was not disclosed in the application process
- applicant owns a share in, manages, controls, or influences the business and so the job offer is a sham
- applicant is related to corporate directors, officers, or employees, calling into question whether the job offer is genuine
- job offer is so specialized and tailored to the applicant that only he or she can fill the position
- applicant does not plan to work for the employer (e.g., buys a house far away from the location of the job offer)
- business was created for the sole purpose of offering employment to the applicant
- applicant plans to work on own (e.g., buys a separate business), and not in the position offered
- applicant is at a consular post which experiences a high level of fraud for this type of job and the applicant meets the “high-fraud profile”
- ownership of the employing company changed significantly since the filing of the permanent labor certificate application
- applicant is, in effect, self-hiring (e.g, there are only a few employees in the company and the applicant’s qualifications exceed those of the other employees)
- applicant is so intertwined with the business that the business is unlikely to function without the applicant.
These cases may end not only with a 212(a)(5)(A) refusal, but with a 212(a)(6)(C)(i) misrepresentation finding as well.
As you can see, the bases for these decisions can vary widely. Complicating the situation is the fact that there is no waiver available if the consular officer makes this 5A decision. Therefore, these decisions can and should immediately be challenged if they do not have a factual or legal basis. Please contact us to find out how we can assist.