Published on the World Journal Weekly on April 1, 2017

Q&A 1 2 3 4

From China, Should I and the Company Pick EB-2 or EB-3 Now That My Labor Certification Is Approved?


I am working for my company under H-1B visa, and it sponsored me for the green card. The labor certification application was put into the Department of Labor in April, we have the labor certification approved, and we will be filing the I-140 petition soon. The requirements for my position were a Masters degree and 2 years of experience. I am from China, which has a backlog in both the EB-2 and EB-3 classes. Should I and the company tell the lawyer to file me under EB-2 or EB-3 category?

Dear reader,

There is no clear answer as no one can say with certainty that he or she knows what will happen with the categories in terms of speed in reaching your priority date. For the month of October 2017, EB-2 availability dates for China-born were prior to 5/22/13 for those who filed labor certification applications and prior to 1/1/14 for those filing under EB-3. However, the speediest today may not necessarily be the speediest 2 or 3 years from now. As the requirements on your labor certification application were amenable to either classification, you and your company can pick whichever one you both want to file for at this time, and perhaps file another I-140 under the other category later on if it becomes apparent that the other category is the faster one. You and the company can also choose to file under both categories at this time and obtain approvals under both EB-2 and EB-3 categories, thereby avoiding any extra work in this regard the future.

Q&A 2

What is Happening to My Petition Case for My Brother?

I filed an I-130 petition for my brother in China in June 2010 and it was approved in July 2011. Since that time, I have not heard anything from Immigration. Is this normal? How can I find out what is going on with my case?

Dear reader,

When an I-130 petition is approved by U.S.C.I.S. for an individual who is overseas, the approved petition is sent to the National Visa Center (NVC) in Portsmouth, New Hampshire, which houses immigrant visa petitions until the time that the priority date is close to becoming current at which time it will ask for documents and fees from the petitioner and overseas applicant. Usually the NVC will send a letter or email to the applicant notifying him or her that it has the case and of the case number assigned to it. Assuming that neither you nor your brother received such a communication, you can still check on the case by calling the NVC, giving required information, and requesting the case number. The NVC can be reached telephonically at 603-334-0700. Its customer service representative hours are from Monday through Friday, 7 AM to midnight Eastern time.

Q&A 3

What Problems Can I Have With Entering the U. S. If I Have Been Approved For I-140 Petition and I Have a F-1 Student Visa?

I am an F-1 graduate student and my institute has sponsored my labor certification and I-140 petition, which of which are now approved. As I know, the I-140 approval means that I want to immigrate to the United States, which goes against my F-1 visa which requires that I have a non-immigrant intent. Will I have problems with Immigration when I reenter if I take trips outside the United States?

Dear reader,

You would certainly be better off if you did not take trips outside the United States when the I-140 petition is already been approved. There is a risk with U.S. Customs and Border Protection at the port of entry for the reasons you have just noted. But if you must travel, you should tell the truth about the I-140 approved petition if asked. Lying to a CBP officer could make you subject to a charge of inadmissibility which would impact upon your ability to immigrate to this country. I note that the Department of State has recently toughened its attitude on issuing F-1 visas where individuals cannot convince a consular officer that they intend to return to the home country after the F-1 studies are over. So if you must obtain a new visa from a U. S. consulate or embassy prior to returning to the U. S., your chances of having a difficult time are now enhanced, and a trip abroad cannot be recommended.


Q&A 4

What to Do If I Want to Quit My H-1B Job?

I have an H-1B visa for a job that I do not like and would like to quit. Can you tell me my options? My husband is an F-1 student.

Dear reader,

U.S.C.I.S. currently allows a grace period of 60 days for you to find another H-1B position and file for an H-1B transfer. You may explore that route if you are interested in still working in the U. S. in the near future. Otherwise as long as your husband is maintaining F-1 student status, you can make an application to change status to F-2 dependent. You would not have authority to work once the F-2 change of status is approved. Between the time of filing and approval, you would still be authorized to work for your H-1B employer as long as it has not yet terminated your employment if you are of the mind to do so.


Copyright © 2003-2018 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.


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