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Employment-Based Immigration


If you need advice about the best ways to obtain permanent residence (“Green Card”) based on employment, Dryer, Dryer & Alarcon, PC in New Rochelle, Westchester, New York is here to assist you and answer all your questions. Or firm’s Immigration layers have a vast experience helping workers, professionals to obtain immigration benefits based their education, skills and an employment offer.

Contact Us Online or Call 914 636-5657 to schedule a Consultation with a New Rochelle, Westchester, Employment-Based Immigration Lawyer

Foreign nationals may obtain permanent residence if they are able to establish that they have unique skills, or are being offered a job in the United States that will not displace a U.S. worker or have an adverse effect on the wages and working conditions of U.S. workers.

There is a limited number (“quotas”) of Immigrant Visas (“Green Cards”) available within a fiscal year.  Whether a person can apply to become a Lawful Permanent Resident is controlled by whether he or she can satisfy the quota requirements.

In a case involving an employment-based preference, the priority date for quota purposes would be the date on which the application for labor certification (discussed, infra) was submitted, or, if a certification was not required, the date on which the preference petition was submitted.

Employment Preferences

The Employment-Based category is organized into preferences

First Preference (EB-1).

This category does not require that the beneficiary obtain a certification from the Secretary of the Department of Labor (DOL) that the work in which he or she will engage will not displace U.S. workers.

The first subcategory within this preference (EB-1-A) is for persons of extraordinary ability in the sciences, arts, education, business, or athletics; the extraordinary ability is to be demonstrated by sustained national or international acclaim and by extensive documentation.

Such persons are not required to have a prospective employer,

but they must be entering to continue to work in their chosen field, and they must “substantially benefit prospectively the U.S.”

The second subcategory within the first preference is that of outstanding professors and researchers with a minimum of three years of experience in teaching or research who are recognized internationally in an academic discipline (a/k/a EB-1-B). To qualify, a foreign national must be coming for a tenure or tenure-track position, or for a comparable position at a university, institute, or with a private employer to conduct research.

While no labor certification is required, there must be an offer of ongoing employment from the sponsoring employer.
The third and last subcategory for the first preference is for multinational executives or managers who have been employed abroad in that capacity at least for one of the last three years prior to entry with the firm, corporation or legal entity, affiliate, or subsidiary of the U.S. Company (a/k/a EB-1-C).

As with the other two EB-1 subcategories, no labor certification is required; however, the prospective employer must submit a statement that the beneficiary will perform as an executive or manager.

Second Preference (EB-2).

This preference is for members of the professions holding advanced degrees, or for persons with exceptional ability in the arts, sciences, or business who will substantially benefit the national economy or culture who are “sought by an employer in the United States.”

“Exceptional ability” is defined as an expertise beyond that which is normally found in the profession.

An advanced degree could include a  “Master Degree “or equivalent or bachelor’s degree plus five years of progressive work experience in their field.

Third Preference (EB-3)

This employment-based category is for skilled workers, professionals, and “other workers”–all of which require approved labor certifications

. “Skilled workers” are persons whose positions require a minimum of two years training or work experience.

“Professionals” are positions requiring a baccalaureate degree or university equivalent.

The “other workers” subcategory is for persons in positions that require less than two years training or experience to engage in the work.

Fourth Preference (EB-4).

This preference is for “special immigrant” visas. The categories include certain religious workers, Panama Canal Treaty employees, Amerasian children, certain employees of U.S. foreign service posts abroad, certain retired employees of international organizations admitted to the United States under the G-4 nonimmigrant visa, and dependents of juvenile courts.

Fifth Preference (EB-5).

This preference is for investors who will create employment positions or are in the process of investing. It provides conditional residency for those who after November 29, 1990, invest $1 million in a new commercial enterprise that will employ at least 10 full-time U.S. workers.

Conditional residency means that the beneficiary receives temporary residency for a two-year period, at which time an application is made to remove the condition and grant permanent residence.

Within 90 days of the anniversary of the grant of conditional resident status, the person may request that the condition be removed, and the individual will be an LPR.

An investment of $500,000 may qualify the investor if the investment is in one of the targeted employment areas that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.

Under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993,

a pilot investor program was established that relaxes the standards for the investor.

The pilot program permits investments through “regional centers” with a relaxed job-creation requirement. The regional centers apply to USCIS demonstrating how the program will promote economic growth.

Upon approval, a foreign investor’s investment in one of these centers may qualify him or her for the immigrant visa.

This program has since been extended to 2008 and is limited to 3,000 visas annually.

The availability of visas under the quota system is determined by the person’s “priority date.

“In a case involving an employment-based preference, the priority date would be the date on which the application for labor certification (discussed, infra ) was submitted, or, if a certification was not required, the date on which the preference petition was submitted.

Labor Certification

In some of the preference categories the U.S. employer who is “sponsoring” an immigrant is required to obtain a certification from the Secretary of DOL that there are insufficient available, qualified, and willing U.S. workers to fill the position, and that the employment will not have an adverse effect on the wages and working conditions of similarly situated U.S. workers.

The requirement of this certification can be found at 8 USC §1182(a)(5)(A), INA §212(a)(5)(A). In the certification process the employer, through a recruitment effort, “tests” the market to establish that the person for whom a certification is sought meets the above statutory standard.

The procedure is as follows: The employer will have to get a prevailing wage determination from the Department of Labor, register the business on the internet with the US Department of Labor, advertise the job on 2 consecutive Sundays, place a 30-day job order with the State Workforce Agency (SWA) and post a notice of the job opening for 10 business days. For Professional occupations 3 additional recruitment steps are required. If anyone applies for the job, the employer has to interview them to ascertain whether they meet the requirements for the job and if they are legally permitted to work on a permanent basis. If qualified US workers do not apply for the job, the application is then filed with the Department of Labor electronically. If all aspects of the job offer meet the Department of Labor’s requirements and qualified US workers cannot be found, the application should be certified.

The labor certification process may be shortened or avoided altogether by qualifying the position as a “Schedule A” position or a position designated for “special handling,” or by obtaining a national interest waiver.

The Secretary of DOL has issued a blanket determination that certain occupations do not have an adverse effect on the wages and working conditions of U.S. workers, and that workers generally are unavailable for these positions; these are known as Schedule A positions.

Please note that as of July 16, 2007, employers must pay all costs related to labor certification process and prohibits payment by the alien beneficiary or others of employer-incurred costs related to the labor certification, including attorney’s fees.

The Petition

Once the Department of Labor certifies the application for alien employment certification, the employer has to file a petition for alien worker with the U.S. Citizenship & Immigration Services within 180 days after the date the labor application is certified.  In support of the petition, the following items must be submitted:

    1. Approved labor certification application,


    1. Evidence of the alien worker’s qualifying  training, education and/or experience and


  1. Proof of the employer’s ability to pay the wage approved by the Department of Labor as of the time the application was filed with the Department of Labor and continuing to the present.

Adjustment of Status or Immigrant Visa Application

Once the worker’s filing date is reached for quota purposes and, depending on eligibility, he/she will either file for adjustment of status to permanent resident at an Immigration Service Office in the USA or process his/her immigrant visa at the American Consulate abroad. This will require a letter from the same employer who started the case indicating that the same job and, at least, the same salary approved by the Department of Labor is still offered to the worker.

Contact Us for Further Information

Please be advised, that this is complex area of law, where there are a lot of exceptions and eligibility requirement that should be assessed before stating a case to avoid pitfalls that could derail your case. Thus, please contact us and schedule a consultation to discuss you particular case with one of our attorneys. During the consultation, the attorney will analyze your case and discuss all the immigration options that you or your employee may have.