As published in the Immigration Daily on November 24, 2023

This is the fourth of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is reinstating the deference policy which instructs officers to consider prior determinations involving the same parties and facts, when there is no material error with the prior determination, no material change in circumstances or in eligibility, and no new material information adversely impacting eligibility. Here USCIS may consider including the word “clear” to emphasize that errors, changes, eligibility, and adverse information should not only be “material”, but should be “clear” errors, changes, eligibility, and adverse information to reduce the chances that a decision will just be made on difference in opinion between two officers.

Eliminating the itinerary requirement for H programs – the reason being that the itinerary is largely duplicative of information already provided in the LCA.

Where USCIS approves an H-1B after the initially requested validity date has ended (typically through favorable motion to reopen, reconsider, or appeals), USCIS may issue an RFE asking whether the petitioner wants to update the dates of intended employment, and if the petitioner wishes, it can submit a different LCA that corresponds to the new requested validity dates even if the LCA is certified after the date the H-1B petition is filed. USCIS would then approve the H-1B petition for the new requested period of time for which eligibility has been established rather than require the petitioner to file a new or amended petition.

H-1B cap exemptions are changing in a way that may benefit a number of organizations in that the  requirement that a nonprofit research organization be “primarily engaged” in basic research and/or applied research and governmental research organization that its “primary mission” is the performance or promotion of basic research and/or applied research would be changed to replace “primarily engaged” and “primary mission” with “a fundamental activity of” to allow for such organizations that conduct research as a fundamental activity, but are not primarily engaged in research or where research is not the primary mission, to meet the definition of a nonprofit research or governmental research entity.

On the same subject of cap-exempt organizations, and those working for companies on the site of the exempt organization, DHS proposes to change the phrase “the majority of” to “at least half” to clarify that H-1B beneficiaries who equally split their work time between the exempt entity and a nonexempt entity, may be eligible for cap exemption. In this context, and taking into account that many positions are performed remotely, the proper focus is on the job duties, rather than where the duties are performed physically. Also that the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives, or functions” of the qualifying organization would be replaced with the requirement that the duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the organization.

USCIS is proposing an automatic extension of cap gap work authorization from September 30 to April 1 in the next year to deal with delayed adjudications and avoid potential disruptions in employment authorization. This will cover automatic extension of F-1 status, post completion OPT and STEM OPT.

USCIS is clarifying that petitioners can put in any date after October 1 for cap cases as long as the requested date does not exceed six months beyond the filing date without fear of the petition being rejected.

On beneficiary-owners, DHS wants to encourage beneficiary owned businesses to participate in the H-1B program with the idea that the beneficiary must perform specialty occupation duties the majority of the time even though he or she may perform duties that are directly related to owning and directing the business. The non-specialty occupation duties must be directly related to owning and directing the petitioner’s business although a beneficiary-owner may perform some incidental duties, such as making copies or answering the telephones. Non-specialty occupation duties may include but are not limited to signing leases, finding investors, and negotiating contracts. (It would appear that this petition must give a breakdown of the percentage of time spent performing each job duty). DHS is trying to set reasonable conditions for when the beneficiary owns a controlling interest, meaning that the beneficiary owns more than 50% of the petitioner or when the beneficiary has majority voting rights in the petitioner. There will be limitations in that the time given for initial approval and first extension is 18 months and any subsequent extension will not be limited and can be approved for up to three years.

This concludes our series.

The above article and the ones preceding it do not entirely cover all parts of the proposed rule. Readers can peruse the complete proposal in the Federal Register, Volume 88, No. 203, October 23, 2023. Parts covered were those deemed most important and interesting by this writer. In summing up, other than the beneficiary centric proposal, there are some novel propositions, some included as the result of successful court challenges, and some that just make common sense. The DHS comment that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings” is nonsensical in light of the catastrophic outlined abuses if the proposed beneficiary centric system is not ready in March.


As published in the Immigration Daily on November 21, 2023

This is the third of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

After making the proposal that regardless of how many entities sponsor a person, that person would only have one registration, USCIS says that the new program might not be ready for next year even though other parts of the proposed rule could be finalized. Most of the other parts are as follow in this and the final article:

USCIS will allow different degrees to qualify an individual for specialized occupation, but says that a petitioner has the burden of establishing how each field of study is in a specific specialty providing a body of highly specialized knowledge directly related to the duties and responsibilities of the particular position.

It gave an example that a petition with the requirement of any engineering degree in any field of engineering for the position of software developer will generally not satisfy the requirement.

It also gave the hypothetical that if such a position requires a bachelor’s degree in an unspecified “quantitative field” (which could include mathematics, statistics, economics, accounting, or physics), “The petitioner must identify specific specialties, such as the majors or degree fields, within the wide variety of “quantitative fields” and establish how each identified degree in a specific specialty provides a body of highly specialized knowledge that is directly related to the duties and responsibilities of the software developer position.”

Does this mean that USCIS could ask the petitioner to justify how each of 4-5 degrees qualify an individual for the specialty occupation? This would be an onerous burden.

Other than USCIS’ concession that a variety of degrees may be able to qualify as per Madkudu et al v. USCIS et al. 5:20-CV-2653-SVK (ND Cal. 8/20/21), (but with the possible idea that petitioners will have to delineate the variety of degrees and how they qualify for specialty occupation), USCIS is conceding that “normal” in the regulation standard (that a bachelor’s degree should be one which is normally required for specialty occupation) does not mean “always” – that as proposed, “normally” will mean “conforming to a type, standard, or regular pattern” and is “characterized by that which is considered usual, typical, common, or routine”. USCIS quotes Innova Solutions v. Baran, 983 F.3d 428 (9th Cir. 2020) that “normally does not mean always” and there is no significant difference between the synonyms “normal”, “usual”, “typical”, “common”, or “routine”.

However, USCIS will continue its practice of consulting the OOH (Occupational Outlook Handbook) on whether a degree is actually required for the occupation. The difficulty in the past has been the primary reliance of USCIS on the OOH when the Handbook was not designed to be relied upon for such, and it appears that the agency will once again give it primacy in putting it forth first in saying that “USCIS will continue its practice of consulting the US Department of Labor’s… Occupational Outlook Handbook and other reliable and informative sources submitted by the petitioner, to assist in its determination regarding the minimum entry requirements for positions located within a given occupation.”

The four criteria of 8 CFR §214.2(h)(4)(iii) for determining “specialty occupation” are changed in that qualifying under one will no longer be seen as satisfying the definition of specialty occupation as the language says that one of the criteria must also be satisfied to meet the definition of specialty occupation.

The first criteria that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position would be changed to a bachelor’s degree in a directly related specific specialty or its equivalent and the word “position” would be changed to “occupation” so that it would now read “A US baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is normally the minimum requirement for entry into the particular occupation”.

The second criteria that the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree is changed to “A US baccalaureate or higher degree and a directly related specific specialty, or its equivalent, is normally required for parallel positions among similar organizations in the employer’s United States industry”.

The third criteria that the company normally requires a degree or its equivalent for the position is changed to “The employer, or third party if the beneficiary will be staffed to that third party, normally requires a US baccalaureate or higher degree in a directly related specific specialty, or its equivalent for the position”.

The fourth criteria combines the left out portion of the present second criteria to add in the word “unique” which was in the second criteria so that the fourth now reads “The specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform the duties are normally associated with the attainment of the US baccalaureate or higher degree and a directly related specific specialty, or its equivalent.”

Although there is a reference to the Madkudu settlement that allows persons with bachelor’s degrees with minors in the subject matter or other equivalents to qualify for H-1B’s, the only reference to the decision in footnote 18 was actually a negative remark in the settlement agreement that “[i]f the record shows that the petitioner would consider someone is qualified for the position based on less than a bachelor’s degree in a specialized field directly related to the position (e.g., an associates degree, a bachelor’s degree in a generalized field of study without a minor, major, concentration, or specialization in market research, marketing or research methods… or a bachelor’s degree in a field of study unrelated to the position), then the position would not meet the statutory and regulatory definitions of specialty occupation….” The rest of the language of the preamble to the proposed rule indicates that there will be a stricter standard on deciding what qualifies as the minimum education for specialty occupation.

Where an H-1B will be placed at a third-party organization, the actual work to be performed by the beneficiary must be in the specialty occupation and it is the requirements of the third-party and not the petitioner that are most relevant in determining whether the position is a specialty occupation. USCIS notes the difference between “staffed” meaning that the beneficiary is contracted to fill a position in the third party’s organization and become part of that third party’s organizational hierarchy and a beneficiary who provides services to a third party.

DHS is proposing that it will have its own authority to ensure that the LCA properly supports and corresponds with the accompanying H-1B petition. It notes that current DHS authority is only stated in DOL and not DHS regulations. This has been a bone of contention between immigration practitioners and USCIS as to the scope of its authority in attempting to match the LCA SOC code with the job title and duties. According to BingChat (please forgive the writer for using the source), the number of SOC codes has only risen from 821 to 867 from 1980 to the present. It is obvious that the number of new created jobs has grown infinitely since that time and employers many times have a difficult task in attempting to target their jobs within a particular SOC code. USCIS’ attempting to give itself more authority to nitpick over particular matches will not help. If this part is implemented, it should include a requirement that USCIS designate an alternate SOC code in any RFE or NOID with reasoning behind why it believes that its choice is more appropriate than the petitioner’s.

Commenting on the other above topics, the proposed rule should define more clearly what is considered equivalent education in accordance with the Madkudu settlement; deemphasize reliance on the OOH on what are minimum requirements to an occupation by listing the type of  sources can be used and then saying “including the OOH”; and clarify whether a petitioner with an occupation that can be met with different degrees as stated in the petition will be required to justify each degree or only the relevant degree of the beneficiary which relates to the position.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on November 19, 2023 : Your spouse’s H-4 application becomes invalid as soon as you are approved as a permanent resident

My I-485 is pending now, and my H-1B is about to expire. Last month I just filed my H-1B extension, and it is currently pending. My wife is my dependent and just filed her I-485, and planning to apply her H-4. My question is, if my I-485 is approved, will my H-1B be invalidated immediately? Will my wife’s H-4 application be affected?

Arthur Lee answers:

I see that you are concerned about the fact that your wife filed later than you for I-485 benefits and that you may be approved before your wife. Unfortunately, your wife’s H-4 application becomes invalid as soon as you are approved as a permanent resident. That is because you no longer hold H-1B status as soon as you become a permanent resident. H-4 is not an independent status and is entirely dependent upon there being a H-1B principal. That being said, your wife is allowed to stay here legally during the time that her I-485 application is pending. If she requires employment authorization, she can apply for an EAD based upon the adjustment if she has not already done so.


As published in the Immigration Daily on November 17, 2023

This is the second of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

As said in Part 1, it is imperative that USCIS implement its proposed beneficiary centric registration system by the next lottery selection in Spring, or bring back the old system of petition filings complete with filing fees to ensure that organizations and beneficiaries actually have “skin in the game” rather than just being able to play by anteing up $10. The list of other abuses decried by USCIS with offered fixes in the proposed rule are not only eye-opening, but appear to mainly spring from the inept present registration system.

USCIS reveals not only how organizations and individuals game the system on selection, but how they afterwards work to make it all profitable as many of them do not have jobs available or the jobs will not be available in the near future.

For those who are overseas, companies delay the people coming here to the States until many months after they obtain the visas. If they do not have the jobs at all, the people can file for H-1B amendments with other companies if they can latch on. The more common situation is that the petitioning company files for an amendment to place them on other third parties’ jobsites rather than where they were supposed to go in the first place.

For those in the US where the companies do not have jobs, the people file for amendments with other companies or with the same company which is now assigning them to another jobsite. Because of this trend, USCIS is hot in the proposed regulation about the timely filing of amendments and that they include upfront evidence of maintenance of status.

Although left unsaid in the proposed regulation, people who are overseas would be eligible to file amendments if they have obtained the H-1B visas from the consulate, and those in the US would be able to do H-1B amendments after October 1 if the company did not withdraw the sponsorship.

USCIS is looking to crack down on the use of amendments for those in the US by emphasizing that they must give up front the evidence of maintenance of status. USCIS is clearly upset over this issue, but at this point is not saying that it will immediately reject or deny amended petitions that do not have this upfront evidence.

It is also emphasizing that companies need to do amendments as per the law as we know it after the 2015 decision of Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), reiterating all the circumstances under which amendments are required, but also noting that amendment is not required where the job is in the same MSA (Metropolitan Statistical Area) or PMSA (Primary Metropolitan Statistical Area), but amendment has to be done even if it is in the CMSA (Consolidated Metropolitan Statistical Area). Apparently, many of these companies are not bothering to do amendments where the people are being assigned to different worksites outside the area of employment covered by the LCA.

It is very wary of identity fraud in the registration process in which people are able to register more than once because of different passports or by saying that they are stateless in one registration and giving a passport in a second application. USCIS proposes that there will be no excuses for not having a passport under the proposal,

On documentation ensuring that companies actually have jobs available, and that the employment is not speculative, DHS would only say that the burden does not mean demonstrating nonspeculative daily work assignments through the duration of the requested validity period; nor identifying and documenting the beneficiary’s specific day-to-day assignments; that it does not intend to limit validity periods based on the end date of contracts, work orders, itineraries, or similar documentation.

USCIS is asking for advice on how it can deal with preventing petitioners from receiving approval for speculative H-1B employment and to stop the practice of delaying H-1B cap subject beneficiaries’ employment in the US until a bona fide job opportunity materializes. It points out that although the regulations require petitioners to notify USCIS if a petition goes unused because the beneficiary does not apply for admission so that USCIS can revoke approval of the petition, the regulation does not include a deadline for admission or a reporting deadline. In thinking about a deadline for admission or a reporting deadline, USCIS acknowledges that the approach would not prevent a petitioner from circumventing the provision by filing an amended petition and further delaying admission, or by having the beneficiary enter the US one day before the deadline and then leaving shortly thereafter. USCIS is also thinking about creating a rebuttable presumption that a petitioner only had a speculative position available if certain circumstances occurred which might include delayed entry or filing an amended petition before the beneficiary would have been admitted to the US in H-1B status. It is clearly flustered by all the ways that people are running around the rules.

The springboard to these abuses is the current registration system allowing beneficiaries multiple opportunities to participate in the H-1B visa lottery, resulting in well over half of the beneficiaries, 408,891, of the 780,844 having multiple registrations in this past selection process. USCIS statistics on the FY 2023 selection showed that one beneficiary had 83 registrations. With an effective barrier in place, most of the above abuses would be lessened to such a degree that the above measures while needed might not be as urgent.



As published in the Immigration Daily on November 14, 2023

This is the first of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is proposing a beneficiary centric registration system to replace its disastrous sponsoring organization registration system which has spawned unheard-of levels of abuse. In the proposal, it will not matter how many times an individual is registered by multiple organizations as that will only result in one registration, with USCIS seemingly sarcastic logic being that this proposed registration system will then allow the beneficiary if selected to pick from among sponsoring organizations to obtain the best terms of employment. In answer to concerns like ours that USCIS should go back to its old system which produced between 190,000-200,000 petitions in pre-registration days as opposed to780,844 registrations most recently (See “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’”, 5/1/23 Immigration Daily, and “Another Call For “Back To The Future” Change of Policy for H-1B Cap Selections by January 2024”, 9/14/23 Immigration Daily), it said that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings.”

We imagine the weighing of costs and benefits depends upon whose perspective – the cost-cutting agency or those whose dreams of staying in the US legally are cheated. Without a feasible solution, the situation becomes intolerable. In the recent FY-2024 registration, over half of the 780,844 registrations were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. USCIS statistics from the previous year even showed one beneficiary with 83 registrations.

Fortunately, the solution of the beneficiary centric registration system seems a feasible solution as it takes away the chief incentive of multiple registrations – the increasing of odds in being selected. However, the change must be done now and certainly in time for the next H-1B registration period. Such would appear to be a simple fix to the system, but there appears to be doubt expressed in the proposed rule that the system change will be done on time. While saying that DHS may seek to finalize the provisions relating to the registration system before moving to finalize other proposed revisions of the rule, it adds that DHS and USCIS cannot predict with certainty agency resources for the next few years or even when the final rule would publish and therefore, there is also the possibility that DHS would need to delay the effective date of the registration system change. Further that the delayed date might only apply to the proposed changes of the beneficiary centric selection process, and in explaining why, says that it may delay the effective date if it determines that USCIS does not have sufficient time to ensure proper functionality of the selection process, including completing all requisite user testing – and DHS might need to delay the effective date for other reasons such as to avoid confusion that could result if the final rule took effect too close to the start of the registration period for the upcoming cap season or to avoid disparate treatment of registrations if the final rule took effect in the middle of the initial registration period or during a subsequent registration and selection period, particularly if USCIS needed to open a subsequent registration period later that year.

It is clear that no one will stand for another year of an inept and outrageous H-1B cap registration system like we have been seeing since its inception regardless of what USCIS says about its weighing of costs and benefits. Even if USCIS has to pour more personnel and capital than planned into fixing the system either by implementing the beneficiary centric system or going back to the old system of petition filings, it must ensure that a clear change is made in time for the next registration period in Spring 2024.


As published in the Immigration Daily on October 24, 2023

  1. EAD’s Increased to Five Years for Many Categories – Question.

USCIS on 9/27/23 announced that it is increasing the length of time for EAD’s in certain categories to five years for initial and renewal EAD’s. These include applicants for asylum or withholding, adjustment under section 245, and suspension or cancellation of removal cases. Also those admitted as refugees, paroled as refugees, and granted asylum or withholding. It clarified that certain Afghan and Ukrainian parolees are employment authorized incident to parole.

Question: As is known, an EAD is only an ancillary application dependent upon the fate of the principal benefit being requested. How does an employer in good faith who does not use E-Verify know that the job applicant is no longer authorized to work when the principal immigration application has been denied since the job applicant will still be presenting an immigration document that is still facially valid for employment as it is one of the documents on the I-9 “A” list that establishes both identity and employment authorization? While recognizing that USCIS has better things to do with its time than constantly extending employment authorization, perhaps a lesser amount of time, three instead of five years, would be more appropriate.

  1. Keeping Straight Ukrainian and Venezuelan TPS Timetables

With extensions and re-designations to the TPS programs of Ukrainians and Venezuelans, we thought to offer a short timetable of the benefits for each nationality to make them clearer as to deadlines to apply, date to be in the US for eligibility, and time limits of stay:


  • First registration was from 4/19/22-10/20/23.
  • Extension goes from 10/20/23-4/19/25.
  • Re-registration for extension is from 8/21/23-10/20/23.
  • Redesignation for those continuously resident in US since 8/16/23 and physically resident in US on 10/20/23 and thereafter.
  • Redesignation also goes from 10/20/23-4/19/25.
  • Registration period for redesignated goes from 8/21/23-4/19/25.
  • Expected eligible Ukrainians for redesignation are 166,700 in addition to the 26,000 eligible for extension under the initial program.


  • First registration and extensions were until 9/9/22 and 3/10/24.
  • New TPS extension announced by DHS on 9/20/23 until 9/10/25.
  • Reregistration for extension goes from 1/10/24-3/10/24.
  • Redesignation for those continuously residing in the US since 7/31/23 and continuously physically present in the US since 10/3/23.
  • Redesignation time goes from 10/8/23-4/2/25.
  • Registration date for initial registration goes from 10/3/23-4/2/25.
  • Expected eligible Venezuelans for redesignation or 472,000 in addition to the 243,000 eligible for extension under the initial program.

More complete information can be found for Ukrainians in the Federal Register / Vol. 88, No. 160 / Monday, August 21, 2023, and for Venezuelans in the Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023.

  1. USCIS Adjudicating Dependent Nonimmigrant Applications Almost Simultaneously with Principal Petitions.

In case you missed it, USCIS posted a notice on its I-129 page that for H-4 and L-2 dependents who are applying in the same package with their principal’s I-129 petition, it will adjudicate the dependent I-539 application(s) directly after approving the I-129 petition. This includes H-4 and L-2 work authorization requests. The news is welcome to all as USCIS in the past adjudicated the dependent applications separately and could take weeks or months to make a decision, leaving a family in suspense even though knowing that the dependent application(s) would in all likelihood be approved. Hardship could arise in the situation where the dependent spouse was waiting for approval of employment authorization to take up or continue employment. The new policy may encourage the use of premium processing for the entire case in such situations. We remind dependents that no biometrics fee is required for the I-539 and that a mistaken combination payment for I-539 and biometrics will result in rejection of the application and upon resubmission not considered to be part of the above policy unless the I-129 was simultaneously rejected and the entire package resubmitted at the same time.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 29, 2023 : 1. Work normally with curtain working visa may be able to go to school part-time 2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status 3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer 4. It has been more than 180 days since I-485 was submitted then you can change your job


1. Work normally with curtain working visa may be able to go to school part-time

A reader asks:
My I-140 was recently approved, and I have worked for so many years, and now I want to work part-time and study part-time. But my GRE and TOEFL have expired and want to take the exams again. Can I not be considered as an international student at this time?

Arthur Lee Esq. answers:
The answer here is dependent upon your current underlying nonimmigrant status. If you have F-1 status or are planning to change your status to F-1 to go back to school and successfully obtain an I-20, you can certainly study part-time (although that would take away your ability to work in most circumstances, save for CPT, eventual OPT, and on-campus part-time work). If you are under F-1 and have valid OPT or STEM OPT, you can do part-time schooling so long as you are able to fulfill your OPT/STEM OPT work hourly obligations. If you are under a working visa (i.e. an H-1B, L-1, O-1, etc.), you may engage in part-time schooling so long as you are able to fulfill your hourly working obligation. For instance, if you are a full-time (40 hour per week) worker under any of these statuses, you can attend school at night and work 8 hours per day. Of course, you may need to demonstrate to USCIS that you are working 40 hours per week through proof of pay, W-2s, and attestations from your employer. If you are attending school, but not working the number of hours you are supposed to be working under your current working visa, then you risk violating your immigration status.

2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status

A reader asks:
I already have an approved I-140 (EB2) before, and now I am applying for a new I-140 (EB3) with the same PERM. My question is while this I-140 is pending, can I leave the country and come back to the US?

Arthur Lee Esq. answers:
The answer to the question depends in part upon whether you have already filed an I-485 adjustment of status application. If the adjustment has been filed and remains pending, you are only allowed to leave the US under advance parole or if you have H (specialized occupation) or L (intracompany transferee) status. If you are not at the point of filing for adjustment of status, the I-140 petition does not confer travel privileges. In that situation, your ability to leave the US and return would be dependent upon factors such as whether you have a valid visa for entry; whether you need to see a US consular officer for a visa to return and in that case, whether the visa that you are asking for has dual intent purposes. (You are obligated to disclose in a nonimmigrant visa application whether you have ever applied for an immigrant visa petition). In the event that you already have a pending I-485 based upon the EB-2 filing and are wondering whether you can travel while applying for an EB-3 visa status with the same PERM labor certification, that is able to be done through leaving the US under H or L status or advance parole based upon the pending I-485 application.

3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer

A reader asks:
I had approved I-140 in my previous company, and my H-1B has been used close to a total of 6 years and not much time left. If I am laid off and return to China at this time, wait a few years for the priority date to become current and then come back and use the remaining H-1B again, will the USCIS give me 3 years of H-1B or just the remaining of 6 years? I worry that the company will not give me an offer on the grounds that there is too little time left for the H-1B and the PD is current.

Arthur Lee Esq. answers:
If you return to China and then come back to the United States more than 1 year later, you will be able to restart another 6 years of H-1B assuming that you “win” the H-1B cap lottery. However, since you would be subject to the lottery unless you apply for a cap exempt organization this may not an ideal solution.

If you have an approved I-140, under certain conditions, you may be eligible for extensions beyond your 6th year without leaving the United States (or coming back into the United States after a couple of years out). Assuming that your priority date is not current, but you have an approved (non-revoked) I-140, you may be eligible for a 3 year H-1B extension/transfer. If you have an unrevoked approved I-140, and your priority date has been current for less than 1 year, you may be eligible for a 1 year H-1B extension.

4. It has been more than 180 days since I-485 was submitted then you can change your job

A reader asks:
If I go to school while my I-140 is still pending, and wait for the priority date to become current, then find a related job, can I apply for I-485? I feel the biggest obstacle is going to school/study will lose my H-1B and my right to work.

Arthur Lee Esq. answers:
Regarding your ability to apply for I-485 after finding a related job, you unfortunately are not eligible for porting since you have not yet filed your I-485 and thus cannot yet switch positions. Job portability, or the ability to move to a new job in the same or a similar occupational classification as the job offer for which an immigrant petition was filed is only available when an applicant’s properly filed I-485 has been pending for 180 days or more at the time that USCIS receives the request to port. In your case, it does not appear that you have filed an I-485. If your priority date is current at this time, you may file an adjustment of status application (with an intent to stay at your current job upon receipt of your green card), and then after 180 days have elapsed assuming your I-485 is still pending, then move to a same or similar position if you find one. But at this time, if you found a new job, you would have to file a new I-140 in addition to redoing the labor certification process if you are filing under EB-3 or EB-2 without Schedule A or NIW. You may be eligible to retain your current priority date so long as your I-140 petition is not revoked due to fraud, willful misrepresentation of a material fact, invalidation of labor certification, or material USCIS error. But aside from priority date retention, you would have to start your petition process over.

Regarding the schooling aspect of your question, you may go to school part-time under valid H-1B status. You can go to school so long as you are fulfilling your hourly obligations under H-1B status. For example, if you are a full-time worker (40 hours per week), you will need to work those 40 hours. If you are able to do schooling outside of those hours whilst still completing 40 hours of work per week, then there is nothing legally stopping you from going to school and studying. If you have an H-1B job that is part-time (say 20 hours per week), then you may go to school as long as you complete those 20 hours weekly. However, if you do not meet your work hourly obligations, you risk violating your H-1B status, which can complicate your I-485 application.


The 2023 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 3 lawyers of Chinese descent in the 82 attorneys chosen in the area of immigration law.

This is the 12th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2022.  He exclusively practices U. S. Immigration and Nationality Law with his son and partner, Arthur Lee, ESQ, in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2023


As published in the Immigration Daily on October 16, 2023

This is the second of a two-part article on the artificial intelligence immigration problem with the PERM system; the NIW option; and a possible solution.

Part 2 – Clarity and Expediency In Employment-Based Immigration for AI Worker

In Part 1 of this article, I laid out the problems pertaining to the United States attracting talented foreign artificial intelligence (AI) workers with regards to procedures governing employment-based permanent residence. In this second installment, a possible solution to better attract AI employees for permanent residence is discussed.

It would benefit the US’ ability to attract AI talent if there is categorical eligibility to forgo the test of the labor market for qualified foreign workers in AI jobs applying for permanent residence. Canadian immigration policy fast-tracks adjudications and visa issuance for foreign workers in six fields of high demand including STEM (science technology engineering and mathematics) and healthcare.[1] Thereafter, the top ranking applicants in those fields are invited to apply for permanent residence.[2] Since Canada employs a “points” system, and assigns points for factors such as years of experience, education, and age, it can determine who the top ranking applicants are. While the United States does not have such a system, it can still find pathways to fast-track the immigration of AI workers. 

US immigration policy currently has some mechanisms in place to fast-track the immigration of highly-demanded workers. One is Schedule A. If an occupation falls within Schedule A, the Department of Labor “pre-certifies” the foreign worker’s position, thereby allowing the employing petitioner to forgo the test of the US labor market. This shortens the PERM green card process by approximately 11-12 months, and eliminates some of the uncertainty in the process. Schedule A pre-certification is available for physical therapists, professional nurses, and “immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.” A highly skilled AI worker may fall into the latter category. But the problem is that in practice, it takes considerable preparation, documentation, and labor to demonstrate exceptional ability in AI-related sciences, and that the adjudication guideline for the demonstration of exceptional ability is not as straightforward as it is for physical therapists and nurses. Additionally, the requirement of exceptional ability weeds out AI specialists who may not be prominent in their industries, but are still highly useful and potentially vital employees to US AI companies.

To improve its ability to attract the best AI talent worldwide, the US government should categorically define its most demanded AI workers and apply a “Schedule A” designation to them. The INA in 1965 gave DOL’s Secretary authority to revise the list “any time upon his own initiative or upon a written petition of any person requesting the inclusion or omission of any occupation…”[3] In practice, however, DOL has not updated Schedule A since 2005, leaving the same occupations on the list for that time: physical therapists, nurses, and immigrants with exceptional ability in the arts and sciences.[4] This is an inaccurate representation of the current needs of the US labor force. If it were up to date, AI tech employees would be on the list in some form. Doing this would greatly reduce uncertainty as to which foreign workers are qualified for a fast-track to permanent residence, and increase adjudicative efficiency. Senator Martin Heinrich’s proposal on modernizing Schedule A is a reasonable solution that should be considered: “The DOL can take short term action by expanding Schedule A using a data-driven approach that uses data on vacancies, unemployment rates, wage growth, and hours worked to assess the sectors most in need of support… In the long term, the DOL could adopt a transparent, modernized statistical model to regularly update the Schedule A list every 5 years.” [5]Modernizing the Schedule A list to incentivize foreign workers to move to the United States to work in high-demand occupations would bolster U.S. competitiveness in key fields such as AI, semi-conductor production, and biotechnology without harming wages and working conditions of U.S. workers.[6] 

To make this policy even more effective in attracting foreign AI workers, qualified Schedule A workers should be exempt from visa backlog restrictions. The reality is that it would be difficult to make a dent in the green card backlogs—especially for those in oversubscribed countries like India and China—even with Schedule A expansion since such employees would still be subject to EB-2 backlogs.[7] But to exempt Schedule A from employment-based visa limits, Congress would have to propose and pass a legislation.[8] This is a tall ask since Congress rarely passes legislative reforms to the U.S. immigration system. While unlikely to pass, this exemption from EB-backlogs for Schedule A is worth consideration. Schedule A was enacted in 1965 to offer permanent resident visas to “qualified immigrants who are capable of performing specific skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.”[9] A skills shortage is backed by compelling evidence for artificial intelligence workers. Talent shortages in AI are likely to have negative economic and security consequences for the country. Therefore, to help the US remain a leader in emerging technologies in the world and the world economy, and maintain its high level of security, the US should consider not only adding AI engineering related positions to Schedule A, but also allowing Schedule A employees to be exempt from EB-visa backlogs.

[1]CTV News, “Health-care workers, science and tech experts targeted in new Canadian fast-track immigration system.” Sissi De Flavis, June 28, 2023.


[3]American Action Forum, “Expediting Immigrant Labor Certification: What Are the Options?” Isabella Hindley. April 19, 2023.

[4]Joint Economic Committee Democrats, “Modernizing the Schedule A Occupation List Can Help the United States Address Key Employment Shortages.” Senator Martin Heinrich (D-NM). June 30, 2023.



[7] Lindsay Milliken, A Brief History of Schedule A: The United States’ Forgotten Shortage Occupation List, University of Chicago L. Rev., September 2020.



Alan Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country. 2. NIW processing time is usually about 12 months

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.