Q&A’s published on the World Journal Weekly on March 26, 2023: Article: Predictions On Number of H-1B Registration Applications. Q&As: 1. Excusable overstay if married to a U.S. citizen 2. Renewal sponsorship by the same employer, approved I-140 can be reused 3. Priority Date is Not Shareable 4. PERM Denied  May Apply for Reconsideration

Article: Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap.

Q&As
1. Excusable overstay if married to a U.S. citizen

A reader asks:
The lawyer and I did not receive an RFE. The online account was not displayed. I called the customer service and said that I couldn’t see that I had an RFE in the system. In the end, my I-485 was denied because I didn’t reply to the RFE. Now the EAD card has also been revoke, and I need to leave the country within 180 days. I have already file motion to reopen, hoping to approve. I thought about several backup plans: 1. Marry a citizen, file I-130. Do I have to leave the country or can I stay in the country as long as I file 130? 2. Find a non-profit job within 180 days, because I can apply for H-1B immediately without lottery. In this way, I do not need to leave the country and apply for green card marriage at the same time. Is there any other way?

Mr. Lee Answers,
Sorry to hear that you were denied for abandonment on an RFE for which your attorney did not reply since neither the lawyer nor you received the RFE. This is unfortunately a more than occasional problem of USCIS that it should work to fix. On your question of whether you would have to leave the country if you marry a US citizen, the answer is “no” since an overstay is forgiven where you are the beneficiary of an approved immediate relative petition and file for adjustment of status. As to whether you can remain here if you find a nonprofit job within 180 days (I assume that you are thinking in terms of a non-cap H-1B and the time for unlawful presence), you would still have to leave the US and return under a H-1B visa status to be legally allowed to take up the employment.

2. Renewal Sponsorship by the Same Employer  Approved I-140 Can be Reused

A reader asks:
I have just been laid off recently. I am currently on Stem OPT. Last year I had an approved I-140, and PD was at the end of 2021. I would like to ask, besides trying to find a new company to go thru the cap H-1B registration process, what else is there for me? way? Is it difficult to use the I-140 again if I return to my country?

Mr. Lee answers,
Besides H-1B transfer, you can attempt to change your status to F-1 student to remain here or if you believe you have extraordinary qualifications, an employer or agent can apply for you under the O-1 category. Those come readily to mind. If you are from a country that has a treaty of navigation and commerce with the US, eg. Taiwan or Japan, you may qualify for E-1 or E-2 treaty trader or treaty investor statuses. Other options are possibly available which would be dependent upon your particular situation. On your question of whether it would be difficult to use the I-140 again if you returned to your country, you might be able to use it if the same employer decides to continue the sponsorship. If not, and the employer has not timely revoked the petition within six months of approval, you should be able to use the priority date for purposes of another employment-based petition.

3. Priority Date is Not Shareable

A reader asks:
I submitted NIW in 2022, and priority date(PD) is in November. I am preparing to file an EB-1A application in January 2023. Are EB-1A and NIW Shared PD? If EB-1A is adjudicated before NIW, is PD still valid after being denied? Do I have to submit EB-1A at this time, or I shall wait for the NIW’s case to be approved before submitting it? I think there is a high probability that my NIW will be approved. Even if EB-1A is denial, can PD be locked until November 2022?

Mr. Lee answers,
There is no “sharing” of priority dates until there is an approved petition. At that point, a priority date can generally be used by the beneficiary in a second employment based case. We have seen this many times in Chinese and Indian cases in which the EB-3 approved petition’s priority date is shared with a later filed EB-2 petition since the EB-2 dates of visa availability lapped those of EB-3 in the past few years. If you wish to use the November 2022 NIW priority date for purposes of an EB-1 petition, you should wait until the NIW is approved before submitting the EB-1 petition and requesting the NIW priority date.

4. PERM Denied  May Apply for Reconsideration

A reader asks:
The PERM audit was denied after 3 months because the address of the Certifying Officer was the old address. What is the solution for this situation? Is it useful to apply for reconsideration?

Mr. Lee answers,
The Department of Labor is strict as to its governing of notices of filing (NOF) for the postings that must be placed upon employment premises. The Department of Labor changed the address for notification to the Certifying Officer of any complaints. The new address of

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue NW, Room N-5311
Washington, DC 20210

became effective on August 25, 2021. Unless there were truly extenuating circumstances, it is difficult to believe that the Department of Labor would bend on a request for reconsideration.

 

Article: TRANSIT POLICY AT BORDER A HEAD SPINNER; LAST DAYS TO START A LABOR CERTIFICATION CASE.

As published in the Immigration Daily on March 21, 2023

 Transit Policy at Border A Head Spinner.

In a bind at the Southwest border because of exploding numbers of migrants, the Biden Administration put forth a two-year parole program for 30,000 per month for the four countries of Venezuela, Nicaragua, Haiti, and Cuba in January 2023, which reduced the number of migrant crossings by 97% in that month. In February, the Administration announced its plan to end the embattled pandemic related bar of Title 42 on May 11, 2023, under which the government has been expelling great numbers of migrants without allowing them the opportunity to apply for asylum. Based upon the Administration’s plan, the Supreme Court de-scheduled oral arguments in February in a suit challenging the use of Title 42.

In its place, the Administration published for comment a temporary transit bar rule effective on May 11, 2023, the ending date of Title 42, to continue discouraging migrants from illegally crossing the US Southwest border. The carrot continues to be the two-year parole program for proper entries, and the stick the inability in most cases to apply for asylum if crossing the border unlawfully unless the migrant made an asylum application in a country that he or she transited before arriving at the US border. Specifically, this proposed rule will establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; or presented themselves at a port of entry at a pre-scheduled time or demonstrated that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application.

This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. The presumption also would be rebutted in other exceptionally compelling circumstances, as adjudicators may determine. Unaccompanied children would be excepted from this presumption.

The rebuttable presumption would be a “condition” on asylum eligibility that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for withholding of removal and protection under the Convention Against Torture (“CAT”).

Why is this a head spinner?

The first is opposition to the carrot. While 360,000 annually in a two-year parole program is not ungenerous, it should be remembered that Poland is hosting over 2 million Ukrainians and Colombia 2.5 million Venezuelans. Yet without any other plan, 20 states filed suit on January 24, 2023, saying that the expanded use of parole authority is unlawful.

Further head spinning is the direct contrast between the transit ban here and the one imposed under the US-Canada Safe Third Country Agreement in which arrival at a formal crossing point bars the migrant from making a claim for asylum in either country, and the migrant must in effect sneak into either country from the other to be eligible for asylum. Exceptions exist. An article in the New York Times on February 9, “Texas sent busloads of migrants to New York. Now the city is paying for tickets to Canada”, outlined the City’s handing out free tickets at the Port Authority bus terminal to Plattsburgh upstate near the border, normally a $75 bus ride of about seven hours. Once there, vans and cars charging anywhere from $50 per person to even $150 take them to Roxham Road, an informal crossing into Québec, where Canadian police officers immediately place them under arrest, direct them to a barn, and process them to be sent to shelters. The attraction of Canada is that once people make a refugee claim at the border, they immediately receive health coverage, social assistance and work permits within 3 to 4 months.

Where do we go from here? No one knows whether the carrot and stick approach will continue to work, or whether lawsuits against the transit ban or parole program will upend the plan.

It should be noted that the Biden Administration is also contemplating the revival of family detention of migrant families crossing illegally into the US to help prevent the anticipated surge beginning May 11. The policy as first put in place by the Trump administration caused family separations and soul-searching in the nation. Officials said that contrary to the Trump implementation, the Biden Administration would adhere to the terms of the Flores court settlement (Flores v. Reno, CV 85-4544 (USDC CD CA 1/28/97)) which only allows children to be detained for 20 days. Stay tuned.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

 

Q&A’s published on the World Journal Weekly on March 12, 2023 1. Dissatisfied with the anti-epidemic policies in China is not consistent with political asylum 2. Employers can sponsor PERMs for remote positions 3. It is difficult to obtain NIW, if papers are rarely cited 4. Immigrant Visa Denied But I-140 is Still Valid 5. Temporarily return to China to work remotely will not Hinder I-485 6. Is DS-2019 Important for My I-485 Application?

1. Dissatisfied with the anti-epidemic policies in China is not consistent with political asylum

A reader asks:
I am a medical worker in China. During the epidemic, I expressed my dissatisfaction with certain anti-epidemic policies. After posting them in a WeChat group, I was criticized by law enforcement agencies. The hospital leader also admonished me, told me not to talk, just follow through the rules. Now, I come to the United States and want to apply for political asylum. Are these accusations and reprimands considered political persecution? Can my asylum case be approved?

Mr. Lee answers,
I suspect that a claim based upon dissatisfaction with anti-epidemic policies as you have expressed in your fact situation might have a problem being approved under US asylum law. The law is based upon past persecution or well-founded fear of future persecution. For a claim of past persecution, the events that you have related – criticism by law enforcement agencies and being admonished by the hospital leader – would likely not rise to the level of persecution necessary for an asylum claim to be approved. For a claim of a well-founded fear of persecution, you would have to demonstrate that the authorities are still interested in you and that you would face persecution upon return to China. You will also have to convince US immigration authorities or immigration court that your opposition to government policy was (past persecution) or is (future persecution) on account of race, religion, membership in a social group, political opinion, or nationality.

2. Employers can sponsor PERMs for remote positions

A reader asks:
Is there a fully remote for PERM and I-140? I recently got an offer. The company is in another state. I live in California. The company does not have an office in California, but it allows me to work from home. If I work from home fully remote, can I apply for I-140 PERM? Are there any additional risks? what should I be aware of?

Mr. Lee answers,
An employer can decide to sponsor a PERM labor certification application for a position that will be wholly remote, but would have to comply with additional requirements of the Department of Labor including an expansion of advertising for US workers on a nationwide basis as the position could be fulfilled by a worker in any location in the country. The company would generally use its headquarter location for purposes of the application, and obtain a prevailing wage determination in that metropolitan area.

3. It is difficult to obtain NIW, if papers are rarely cited

A reader asks:
I am a doctor of liberal arts and have been graduated for four years. I joined a consulting company after graduation, and now I am doing research-related work in a big factory, with very few papers and only 2 citations. I have several conference papers, and I want to try to apply for NIW, but several law firms have rejected them. I don’t know how to prove the nature of the work and the national interest related to the impact. Should I give up?

Mr. Lee answers:
An NIW case is generally very fact specific, and knowledgeable law firms will usually go over your situation and accomplishments before rendering an opinion that your case would not be approved. I note that USCIS is generally looking for pioneer type research in peer-reviewed journals which has been well cited. Having a few papers with only two citations is probably not very persuasive. If possible, a better approach might be contacting a US company or institution in your field and having it sponsor you through a PERM labor certification for permanent residence.

4. Immigrant Visa Denied But I-140 is Still Valid

A reader asks:
I am in China, and I want to apply for I-140 or EB1-A, but I am still a CCP party member (without a job), and now I want to know the following situation: 1. If I quit the party for less than two years when I went to the Guangzhou embassy or consulate for an interview , how likely is it to be rejected after two years or less than five years? 2. If rejected, will the approved I-140 and the accompanying priority date (PD) be retained? 3. Can I use this PD to submit another interview application again (for example, five years after quitting the CCP)?

Dear reader,
As you are aware, meaningful membership in the Communist Party of China imposes a five year bar on entry to the US for purposes of permanent immigration (not nonimmigrant visas) after leaving the Party. Appearing for an interview at the consulate in Guangzhou after leaving the party for two years will result in a denial if the association was meaningful. Denial of the immigrant visa does not automatically invalidate the approved I-140 petition. However, inability to rebut the ground of inadmissibility within a year may serve to terminate the entire case. If a case has been terminated by the Department of State, the priority date is no longer available for use.

5. Temporarily return to China to work remotely will not Hinder I-485

A reader asks:
I am currently in the OPT (non-STEM) period. I submitted the EB-1 application in January of last year, and submitted the I-485 in April last year. I am waiting for the interview. The interview time is unknown. My interview was ready to be scheduled in late September last year, and I have already obtained the EAD and AP of AOS. Our company has an office in China, and some colleagues went to work remotely in their home country for a few weeks. My boss also said that it was OK, and not to worry about layoffs. It seems that the interview will not be scheduled for a while. If I receive an interview notice within one month of returning to China, I should have time to return to the United States. I haven’t been back to China for almost 3 years, and I miss my family and friends very much. If I return to China to work remotely for a month and then return to the United States, will there be any problems?

Dear reader,
As you already have an advance parole and filed the I-485 application last year, I do not see a problem with your going home to work remotely for the company for one month before returning to the States. The time that you are planning to stay in China, one month, is conservative, and the purpose of working remotely for the company while overseas provides a good reason in the unlikely event that you are questioned about your purpose in having returned to China for the trip.

6. Is DS-2019 Important for My I-485 Application?

A reader asks:
I will submit I-485 soon, but I could not find the DS-2019 I had ten years ago. Ten years ago, I entered the U.S. as a J-1. After staying in the United States for 5 months, I returned to China for two years, so I should not need a J-1 waiver. More than 2 years later, I entered the U.S. again with F-1 status. I am currently F-1 STEM-OPT. Now I am following the main applicant to file my I-485, but I could not find the DS2019 form. I contacted the school I attended before, but no one was at work. Will there be a critical issue if I do not attach the DS-2019 with my I-485 form? How did others solve the problem?

Mr. Lee answers,
Although it would be better to have the DS-2019 exchange visitor form as part of the I-485 application, it should be adjudged less critical where you are able to prove that you returned to the home country for two years following your J-1 stay. (For many countries, coming to the US usually imposes a two-year home residence requirement before the individual can apply for permanent residence, H or L visas). I assume that you can present the passport containing the J visa and proof of your U.S entry and exit date along with proof that you served out the two-year home residency requirement in your home country.

Article: PREDICTIONS ON NUMBER OF H-1B REGISTRATION APPLICATIONS; CSPA VIS-À-VIS USCIS ADJUSTMENT CHART.

As published in the Immigration Daily on March 7, 2023

Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap. And two others predicted up to 500,000 and between 550,000-600,000 requests for H-1B registration would be made.

The total number is given in April, and we will see how the predictions fared.

CSPA Vis-À-Vis USCIS Adjustment Chart.

A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.

In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”

This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”

We will look with great interest to see how this all works out going forward.

 

Q&A’s published on the World Journal Weekly on March 5, 2023 1. Change of Status from H-4 to F-1 Must has Spouse’s H-1 Documents 2. In Some Cases, Premium Processing Filing Fee Can be Waived 3. 3. Do not Rely on USCIS’ Unofficial Notices 4. Filing I-485 without J Supplementary Form is More Likely to be Rejected 5. STEM Graduates Can Stay in the United States for 3 Years with OPT

1. Change of Status from H-4 to F-1 Must has Spouse’s H-1 Documents 

I’ve H-4 visa which expires in march 3 2023 and I want to change it to F-1 visa, can it be possible without the help of my husband documents? I want to study independently.

Mr. Lee answers,
Without the help of your husband’s documents, it is difficult to see how USCIS could approve a change of status application from H-4 to F-1. For a change of status in the US, USCIS must see that both you and your husband are maintaining legal nonimmigrant status – especially focused on your husband since he is the principal of the H-1B/H-4 statuses. You would need a copy of his H-1B approval and proof of recent pay from the H-1B employer to show that he is maintaining his status.

2. In Some Cases, Premium Processing Filing Fee Can be Waived

I am going to apply for employment-based immigration case. Someone suggests that I spend an extra $2,500 to expedite it, but I am hesitating. I saw on the USCIS official website, it takes 10 months to process, but someone said that he got approved in less than a month. Was it a special case or has it been speed up recently? Do I have to spend an extra $2,500 to expedite it?

Mr. Lee answers,

Employment based cases involving I-140 petitions generally take much time for USCIS to reach and adjudicate. For example, in checking the published times of the two immigration service centers handling these type of cases, Nebraska has a 20 month backlog on EB-1A extraordinary alien petitions, 10 months on EB-2 advanced degree petitions, and 17.5 on EB-3 professional/skilled worker petitions. Texas has a similar backlog of 22 months for EB-1A, 10 months for EB-2, and 20.5 months for EB-3.

The agency will expedite without requesting a fee in the following circumstances as per its policy manual:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;[3]
  • Emergencies and urgent humanitarian reasons;
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
  • U.S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
  • Clear USCIS error.

Unless the petition that you heard of being approved in less than a month without premium processing fit within one of the above categories, it was most likely an outlier.

3. Do not Rely on USCIS’ Unofficial Notices 

I filed an EB-1A application before, received RFE, and then I asked my lawyer to withdraw it. I checked the case status online today, but the application was approved. I asked my lawyer, the lawyer replied that they had encountered the same situation before, and the USCIS would revoke the approval later. He didn’t promise that would be the case this time, though. I think immigration made a mistake. My lawyer said he would check with USCIS.  He got back to me and said whether the case was withdrawn or not, depended on the official notice. He said the USCIS would get back to him within 30 days. What is this going?

Mr. Lee answers,
I am of the same opinion as your lawyer that USCIS will later revoke the petition approval. In your fact situation, you clearly state that there was an RFE and that the law firm withdrew it. USCIS has a long history of denying as abandoned those cases in which it issues RFE’s and there is no response. In your case, there was a definite response – withdrawal by your attorney. In such case, USCIS will send a withdrawal confirmation. Please note that unofficial messages by USCIS on its online system cannot be relied upon 100% as we have seen many occasions on which the unofficial response does not match the ultimate adjudication that comes from the agency.

4. Filing I-485 without J Supplementary Form is More Likely to be Rejected

I planed to start working as a teacher in January 2023, and in December my school filed my EB-1B’s I-140 application . I originally planned to file my I-485 after joining the school in January, but suddenly I found out that EB-1’s priority date has become current in January. I thought about submitting I-485 in December, but the school said that I-485j form could not be issued without employment. I would like to ask, if I submit I-485 without I-485j form, will I be rejected immediately? Or can it be added later when the RFE is issued?

Mr. Lee answers,
To give some background, EB-1B for outstanding scholars and researchers backlogged to June 1, 2022, for natives of India and China on January 1, 2023, on the “dates for filing” chart of the Department of State and is holding to the same date in February. To file an I-485 application in January or February, you will either have to be a non-native of these two countries or have a priority date earlier than June 1, 2022. To your specific question of whether you could file in December 2022 without Form I-485J and not be rejected, the answer is uncertain. I recall that when the I-485J supplement was first added (a form required to confirm employment for most employment-based classes where the I-485 was not concurrently filed with the I-140 petition), USCIS was forgiving when the J form was not included with the filing. Whether the agency is so forgiving at this time is something that we do not know at this time. I note that if you tried, it may have been better to include a job offer letter from the institution. I also note that the J form is now being requested on the “Checklist for Required Initial Evidence for Employment Based Form I-485 Applicants”, which makes it easier for USCIS to reject than when it gave no previous written warning in checklist or instructions that the supplementary form was to be included.

5. STEM Graduates Can Stay in the United States for 3 Years with OPT

I want to stay in the US for five years. Now, I am going to apply for computer major. Can I stay in the United States for five years after studying this major?

Mr. Lee answers,
There are many individuals who manage to stay in the United States for five years after studying for a degree in computer science. That is considered a STEM (Science Technology Engineering and Math) major which is highly prized and allows graduates to obtain another two years of practical training on top of the regular one year of postgraduate optional practical training. During the three years, many individuals are able to switch over to H-1B specialized occupation visas in which individuals can remain on six years. Other options may also be available depending upon your particular situation. For those not born in India or China, there is also the possibility of employer-sponsored green cards within 1-2 years if everything goes well.