Employment-Based Immigration in California
Employment-based immigration plays a crucial role in attracting skilled workers, entrepreneurs, and investors to the United States. California, with its thriving technology, entertainment, and agriculture sectors, greatly benefits from the influx of talent and innovation brought by these immigrants. Martin Fontes, founder of Fontes Law Group and an expert in immigration law with offices in Riverside and Santa Ana, has assisted many clients in navigating the employment-based immigration process. In this blog post, we will explore the various categories of employment-based immigration, the application process, and some California-specific considerations.
Categories of Employment-Based Immigration
The U.S. immigration system allocates 140,000 visas annually for employment-based immigrants across five preference categories (1):
- EB-1: Priority Workers
- Extraordinary ability in the arts, sciences, education, business, or athletics
- Outstanding professors and researchers
- Multinational managers or executives
- EB-2: Professionals with Advanced Degrees or Exceptional Ability
- Professionals holding advanced degrees
- Individuals with exceptional ability in the sciences, arts, or business
- EB-3: Skilled Workers, Professionals, and Unskilled Workers
- Skilled workers with at least two years of experience
- Professionals holding a U.S. bachelor’s degree or its foreign equivalent
- Unskilled workers capable of performing unskilled labor
- EB-4: Certain Special Immigrants
- Religious workers
- Employees of U.S. foreign service posts
- Translators for the U.S. military, among other special categories
- EB-5: Immigrant Investors
- Individuals investing at least $1.8 million (or $900,000 in targeted employment areas) in a new commercial enterprise, creating at least 10 full-time jobs for U.S. workers (2)
The Employment-Based Immigration Process
The employment-based immigration process typically involves several steps, which can vary depending on the specific visa category:
1. Labor Certification (EB-2 and EB-3)
For most EB-2 and all EB-3 applicants, the sponsoring employer must first obtain a labor certification from the Department of Labor (DOL) through the Program Electronic Review Management (PERM) system (3). This process involves testing the U.S. labor market to ensure that no qualified U.S. workers are available for the position and that hiring a foreign worker will not adversely affect U.S. workers’ wages and working conditions.
2. Filing a Petition
Once labor certification is obtained (if required), the employer files a Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS) (4). For self-petitioning categories like EB-1 extraordinary ability and EB-2 national interest waiver applicants, the foreign worker files the petition themselves.
3. Visa Availability and Application
Upon approval of the I-140 petition, the foreign worker must wait for a visa to become available. Visa availability depends on the annual limits for each preference category and the worker’s country of chargeability. The U.S. Department of State’s monthly Visa Bulletin provides information on visa availability (5). Once a visa is available, the worker can apply for permanent residence either through adjustment of status (if in the U.S.) or consular processing (if outside the U.S.).
4. Approval and Green Card Issuance
After the permanent residence application is approved, the worker will receive their green card. For those in the U.S., USCIS will mail the green card, while those outside the U.S. will receive an immigrant visa in their passport, which they will use to enter the U.S. Upon arrival, they will receive their green card by mail.
Challenges and Considerations in Employment-Based Immigration
Employment-based immigration can be a complex process with various challenges and considerations for both employers and foreign workers:
- Long wait times: Due to annual visa limits and high demand, some employment-based immigrants may face extended wait times, particularly those from countries with large numbers of applicants, such as China, India, and the Philippines (5).
- Job offer and employer sponsorship: Most employment-based categories require a job offer from a U.S. employer willing to sponsor the foreign worker’s immigration process. This can be a significant hurdle for foreign workers who may have the skills and qualifications but lack employer sponsorship.
- Documenting qualifications and achievements: Applicants in the EB-1 and EB-2 categories must provide substantial evidence of their extraordinary ability, exceptional ability, or advanced degree. This can involve gathering extensive documentation, such as publications, awards, and recommendation letters.
Employment-Based Immigration and California-Specific Considerations
California’s dynamic economy and diverse industries make it an attractive destination for employment-based immigrants. Some California-specific considerations for these immigrants include:
- Industry focus: California is home to various thriving industries, such as technology, entertainment, and agriculture. Foreign workers in these sectors may have increased opportunities for employment-based immigration.
- State-level support: California provides resources and assistance to immigrants, including access to healthcare, education, and legal services (6). These programs can help employment-based immigrants acclimate to life in the U.S. and contribute to their communities.
- Legal representation: Navigating the employment-based immigration process can be challenging. Retaining an experienced immigration attorney, like Martin Fontes of Fontes Law Group, can help guide both employers and foreign workers through the complexities of this process and maximize their chances of success.
Employment-based immigration is an essential aspect of the U.S. immigration system, allowing California to attract and retain top talent from around the world.
Understanding the various categories, the application process, and potential challenges can help employers and foreign workers successfully navigate the employment-based immigration landscape.
- U.S. Citizenship and Immigration Services (USCIS). (n.d.). Employment-Based Immigration. Retrieved from https://www.uscis.gov/green-card/green-card-eligibility-categories
- U.S. Citizenship and Immigration Services (USCIS). (n.d.). EB-5 Immigrant Investor Program. Retrieved from https://www.uscis.gov/eb-5
- U.S. Department of Labor. (n.d.). Permanent Labor Certification. Retrieved from https://www.foreignlaborcert.doleta.gov/perm.cfm
- U.S. Citizenship and Immigration Services (USCIS). (n.d.). Form I-140, Immigrant Petition for Alien Worker. Retrieved from https://www.uscis.gov/i-140
- U.S. Department of State. (n.d.). Visa Bulletin. Retrieved from https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
- State of California. (n.d.). California Immigrant Guide. Retrieved from https://immigrantguide.ca.gov