Monthly Archives: November 2022

How to Obtain an EB-3 Visa?

Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published November 14, 2022


Legal Thoughts is an audiocast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, contract litigation, and immigration legal matters.

This episode of Legal Thoughts is an audiocast where the Attorney, Coleman Jackson is being interviewed by Alexis Brewer, Legal Assistant of Coleman Jackson, P.C. The topic of discussion is: “How to Obtain an Eb-3 Visa?”

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ATTORNEY: Coleman Jackson




ATTORNEY: Coleman Jackson

Welcome to Legal Thoughts

My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, contract litigation and immigration law firm based in Dallas, Texas.

In addition to myself, we have Alexis Brewer – Tax Legal Assistant, Leiliane Godeiro – Litigation Legal Assistant, and Johanna Powell – Tax Legal Assistant.

On today’s “Legal Thoughts” podcast, our Tax Legal Assistant, Alexis Brewer, will be interviewing me on the important topic of: “How to Obtain an Eb-3 Visa?”


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Hi everyone, my name is Alexis Brewer and I am a Legal Assistant at the tax, contract litigation and immigration law firm of Coleman Jackson, Professional Corporation. Our law firm is located at 6060 North Central Expressway, Suite 620, right here in Dallas, Texas.

Good afternoon, Attorney; thank you for agreeing to sit with me as I interview you with respect to EB-3 visas. Let’s jump right in –

Question 1: What is an EB-3 Visa?


Attorney Answer – Question 1:

Hello Alexis.

An EB-3 Visa a third preference business visa for immigrants who are skilled workers, professionals, or other workers who want to live and work in the United States. Let me explain this visa category.

USCIS considers a person a “skilled worker” if they have a job that requires a minimum of 2 years of training, or experience. In other words, the job is not temporary or seasonal. USCIS considers a worker a “professional” if their job requires a U.S. baccalaureate degree or a foreign equivalent. Lastly, the “other worker” category is for people who work in unskilled labor that require less than 2 years of training but are not temporary or seasonal jobs.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 2: Well attorney, what are the requirements for an EB-3 Visa?


Attorney Answer – Question 2:

Whether you are applying for an EB-3 Visa under the skilled worker, professional, or unskilled worker subcategories, you are required to present a labor certification AND show proof of a permanent full-time job offer.

The labor certification must be approved by the Department of Labor by the employer filing Form ETA-9089.

Additionally, an employer must file Form I-140 Petition for Alien Worker on behalf of the applicant. The employer must be able to demonstrate an ability to pay through annual reports, federal income tax returns, etc. Lastly, an employer must obtain the labor certification form to show that there are no Americans who are willing or qualified to fill the position.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 3: Can EB-3 visa-holders bring family members through on their EB-3 Visa?


Attorney Answer – Question 3:

Yes, Alexis. As an EB-3 Visa recipient you can bring immediate family members with you to the United States on a separate petition. For EB-3 purposes, an immediate family member includes a spouse, and any dependent children who are under 21.

Children are able to attend school and a spouse may complete an Employment Authorization Document or obtain a green card to work. More specifically, a legal spouse of an EB-3 recipient under the “skilled worker” or “professional subcategory” can apply for an E-34 visa.  If the EB-3 recipient is under the “other worker” subcategory then their spouse can apply for an EW-4 visa.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 4: Can an EB-3 Visa lead to a Green Card?


Attorney Answer – Question 4:

This is a great question –

A significant benefit of obtaining an EB-3 visa is that it provides a recipient with a green card. In the EB-3 context, an employer is the petitioner, and the immigrant applicant is the beneficiary.

Green cards provide a multitude of benefits including providing permanent residence in the United States, allows a permanent resident to have flexibility in travel, and provide a path to citizenship.

Also, as I mentioned previously, an EB-3 visa holder can apply for their spouse and children (unmarried and under 21 years of age) to obtain permanent residence visas as well.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 5: What are typical processing times for an EB-3 Visa?


Attorney Answer – Question 5:

Processing times can vary depending on a variety of factors including, the time of year you are submitting your application, what country you are applying from, and if you have applied for premium processing.

An application may take from a few months up to 4 years. Additionally, if considering the timeline of an EB-3 visa, you must remember that the employer has to obtain a labor certification which will take time since it needs to be approved by the U.S. Department of Labor. Aspiring immigrants who desire to live and work in the United States should keep looking up and not be discouraged by the process; the EB-3 Visa is a permanent visa that creates a clear path to U.S. citizenship for qualified foreigners desiring to immigrate to the U.S.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Question 6: Attorney, you mentioned premium processing. What is premium processing and is it available for EB-3 Visas?


Attorney Answer – Question 6:

 Well Alexis, Premium processing allows for expedited processing of your EB-3 visa for an additional fee.

Premium processing is currently available for EB-3 Visas. The current fee for premium processing is $2,500 and it allows you to request faster processing for your I-140 petition. USCIS states that in requesting premium processing they estimate that your petition will be processed in about 15 calendar days. This fee is in addition to the filing fee for your I-140 petition.


INTERVIEWER: Alexis Brewer, Tax Legal Assistant

Attorney, my final question –

Question 7: Are there any annual caps or limits on EB-3 Visas?


Attorney Answer – Question 7:

In fact, there is an annual limit on EB-3 visas.

USCIS allocates a total of 40,040 visas each year in this category. Once this number is met, any remaining petitions are put aside until the next fiscal year. Processing times can be affected by this yearly cap which is why if you are thinking of applying for an EB-3 Visa, this is something to consider early on in the process.


Interviewer Wrap-Up

Attorney, thank you for this clear and very important presentation on the process and benefits of an EB-3 Visa.  Many American business owners looking for skilled workers, professionals and even unskilled workers are likely to find this information very useful. For now, thanks for sitting with me today and answering my questions concerning what we think our listeners should know and consider when obtaining an EB-3 Visa.

To our listeners who want to hear more podcast like this one please subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever you listen to your podcast. Take care, everyone! And come back in about two weeks, for more taxation, litigation and immigration Legal Thoughts from Coleman Jackson, P.C., located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.

English callers:  214-599-0431 | Spanish callers:  214-599-0432 |Portuguese callers: 214-272-3100


Attorney Closing Remarks

This is the end of today’s Legal Thoughts!

Thank you all for giving us the opportunity to inform you about: “How to obtain an EB-3 Visa?”

If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C.  Subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever you listen to your podcast.

Stay tuned!  We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration.  Until next time, take care.

Taxpayer’s Responsibility to Substantiate the Numbers on Their Federal Tax Return

By Coleman Jackson, Attorney and Certified Public Accountant

October 11, 2022

As a general rule a taxpayer is allowed a deduction for all ordinary and necessary expenses paid or incurred during the taxable year in carrying on a trade or business.  This basic tax rule is set forth in Internal Revenue Code Section 162.  The particular tax return that a taxpayer’s file depends upon how the business is structured under applicable state business organizational law and certain timely tax elections that the business owners make.  That sounds wonderful; but don’t move too fast because the Internal Revenue Service is not going to simply take the taxpayer’s word for it.  Generally, taxpayers are required to keep records in sufficient quality to establish the amounts, dates and business purpose of the items recorded on their tax return. Taxpayers generally bear the burden to show that they are entitled to deduct an expense on their tax return.  See Internal Revenue Regulation Section 1.6001.  Sometimes taxpayers can establish that an expense has occurred during a tax period, but cannot establish the exact amount.  When this occurs, the taxpayer must produce sufficient evidence to permit an estimation of the amount deductible on the tax return.  See Vanicek v Commissioner, 85 T.C. 731, 743 (1985).

Internal Revenue Code Section 274 sets forth detailed substantiation requirements to which taxpayers must adhere.  Treasury Regulation 1.274(d) sets out several categories of expenses that require enhanced substantiation.  Generally, the taxpayer substantiates their tax deductions by either adequate records or sufficient probative evidence that corroborates the taxpayer’s statements and opinions concerning the deductibility of the expense.  The substantiation burden only requires that the taxpayer maintain sufficient records and documentary evidence to establish the date, amount and business purpose or use of the expenditure.  The taxpayer’s words alone; however, are insufficient substantiation.  But the taxpayer’s written or oral words are sufficient to substantiate the deductibility of the expenditure if it is supported by credible corroborative evidence sufficiently establishing the deductibility of the expense.  As stated before, the burden to show that expenditures are deductible belongs to the taxpayer at all times. The United States Supreme Court has established this burden issue long ago in a case called New Colonial Ice Co. v Helvering, 292 U.S. 435, 440 (1934).  Yes, that means the taxpayer must prove that the expense is deductible in the first place.  In other words, the taxpayer must always prove deductibility of an expense upon challenge by the IRS.  Moreover, see also Internal Revenue Regulation 1.274. (d) regarding the enhanced substantiation requirements on certain categories of expenses.

For the non-tax lawyer and non-tax professional, this might all seem very esoterically complicated.  Like lifting weights—start with a weight that you can easily lift and graduate to more and more weight until you have achieved your goal.  Our goal here is to explain this in layman’s terms; so that, layman can understand the tax concepts of deductibility, substantiation and burden as these terms apply to their tax return.  Let’s try to explain substantiation in layman’s terms:  to be deductible on the taxpayer’s tax return all expenditures must meet three requirements, and possibly four as follows:

  1. Be incurred in pursuit of a trade or business (this means personal expenses don’t count);
  2. Be an ordinary and necessary expense (this means expenditures common to the taxpayer’s trade, group or industry);
  3. Be substantiated by sufficient records or documentation, which can include the taxpayer’s corroborated written and oral statements; and for some expense categories;
  4. Be subject to enhanced or stricter substantiation, such as, contemporaneous logs, charts, and diaries.

Looking at someone play sports is not the same as actually participating in sports.  Neither is reading about tax substantiation in a blog the same as actually running a trade or business in real time and sufficiently substantiating tax expenditures in preparation for the day when the Internal Revenue Service Auditor knocks on the door.  Like locks on our doors are preparatory; the expenditure substantiating taxpayer don’t expect the auditor’s knock, but is prepared if it comes.  It’s kind of like being prepared when a thief comes by having locks, alarms and even attack dogs.  What might these preparatory things look like?

“Ordinarily, documentary evidence will be considered adequate to support an expenditure if it includes sufficient information to establish the amount, date, place, and the essential character of the expenditure.  For example, a hotel receipt is sufficient to support expenditures for business travel if it contains the following: name, location, date, and separate amounts for charges such as for lodging, meals, and telephone.  Similarly, a restaurant receipt is sufficient to support an expenditure for a business meal if it contains the following:  name and location of the restaurant, the date and amount of the expenditure, the number of people served, and, if a charge is made for an item other than meals and beverages, and indication that such is the case.  A document may be indicative of only one (or part of one) element of an expenditure.  Thus, a cancelled check, together with a bill from the payee, ordinarily would establish the element of cost.  In contrast, a canceled check payable to a named payee would not by itself support a business expenditure without other evidence showing that a check was used for certain business purpose.”  See Internal Revenue Code 274.

If a taxpayer with a canceled check payable to a named payee is struggling to lift the substantiation weight, one can only imagine the plight of the taxpayer who conducts its business in cash.  Cash is a completely inappropriate way to conduct business.  But many foreign immigrants came from societies and cultures where business is routinely conducted in cash.    Cash cannot be substantiated and an IRS auditor is very likely to deny any and all expenditures paid in cash unless the taxpayer has serious corroborating evidence to back up their written or oral word.  When paying contract labor and other expenses by cash, the taxpayer voluntarily places onto themselves and their company’s enormous weight because Internal Revenue Code Section 6663(a) states that if any part of any underpayment of tax required to be shown on a tax return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.  See Tax Court case styled, Petzoldt v. Commissioner92 T.C. 661, 699 (1989).  Construction companies and other taxpayers must be sure to substantiate their contract labor or other labor costs by obtaining accurate and complete Form W-9 from all workers who are independent contractors and Form W-4 for workers who are employees, by filing all Form 1099 Miscellaneous with the Internal Revenue Service for all independent contractors or file Form W-2 for employees, withholding the proper tax amounts when required by law, by paying all workers by check and documenting the labor transactions in their books and records.  Numerous federal courts have stated that dealing in excessive amounts of cash is an indicia of tax fraud.  Courts have said that other indicia of tax fraud are (1) substantial understatement of income, (2) maintenance of inadequate records; and 3) implausible or inconsistent explanations of behavior.  See Bradford v Commissioner, 796 F.2d 303, 307 (9th Cir. 1986).  Taxpayer’s demonstrating two or more of these characteristics are all but certain to be charged with the tax fraud penalty and possibly referral to the IRS Criminal Investigations Unit.  See Otsuki v Commissioner, 53 T.C. 96, 106 (1969) and Solomon v. Commissioner, 732 F.2d 1459, 1461 (6th Cir. 1984).

And for expenses, such as, car and truck expenses, taxpayers must comply with the weightier substantiation requirements of Internal Revenue Code Section 274(d) which requires the taxpayer to substantiate vehicle, entertainment, travel and certain other listed expenses by sufficient evidence corroborating the taxpayer’s own statements.  Under the stricter substantiation rules taxpayers must maintain adequate records, such as, account books, diaries, logs, statements of expense, trip sheets, or similar records prepared contemporaneously with the use or incurrence of the expenditure and documentary evidence such as receipts or bills.  See Jijun Chen and Xiujing Gu v. Commissioner (T.C. Memo 2015-167) a recent Tax Court case dealing with disallowance of personal car and truck expenses.  The IRC 274(d) enhanced substantiation requirements are set forth in Internal Revenue Regulations Section 1.274-5T.  Remember that locks, alarms and attack dogs are to prepare for the thief or robber.  Taxpayers are responsible for substantiating the numbers on their tax returns, and knowing and properly implementing these taxpayer substantiation requirements are preparatory in the event the tax auditor comes knocking.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432