Month: June 2023

1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B

I am a PhD in Tiankeng major (which is the collective name of Chinese netizens for the four majors of biology, chemistry , environment , and materials ( biochemical and environmental materials ), and I switched to computer field in 2019. In 2019, I won the H-1B lottery and went through several companies. Unfortunately, every time when my PERM was about to be approved or ready to file PERM, I was laid off (twice), and never filed PERM. My current situation is that my company successfully filed the PERM for me in March of this year, but I am not sure whether I will be laid off before the I-140 is approval. Now I want to apply for NIW-EB-2, and my articles were cited 23 times at the journal/conference and had 160 reviews1. My questions are: How do I apply for NIW which can extend my H-1B? My H-1B will be in the fifth year in October 2024. When do I need to get my PERM’s I-140 approval to renew my H-1B? Will it be before October 2024 or October 2025? When I got the approved I-140, I would want to leave the company, but will the company withdraw the I-140 application if I leave? At present, the PERM of all companies, large and small, has basically stopped. what do I do?

Mr. Lee answers,
Whether USCIS will approve your NIW EB-2 application depends upon the officer’s judgment of your qualifications in light of the precedent decision, Matter of Dhanasar, with factors whether your endeavor has both substantial merit and national importance; whether you are well-positioned to advance the endeavor; and if on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. In order to renew your H-1B past the standard six year limitation, you would either have to have 365 days pass since filing the NIW or labor certification application, or if you are from a country with backlogged quota, have an approved I-140 petition. The time to begin a labor certification if everything goes well is approximately two years prior to the six-year expiration due to the time required to obtain the prevailing wage determination and for the labor certification to pass through the Department of Labor. If you obtain an I- 140 approval, the petitioning organization generally has 180 days to revoke the petition. If such is done within 180 days, the priority date is usually preserved, but the petition is not valid for extending H-1B status past the six-year limit.

2. PERM application related skills depends on the employer’s requirement

I graduated this year, and I am lucky to get an offer as a junior front engineer at the beginning of the year. The company is willing to immediately to get started with PERM EB-2 for me. A few days ago, the lawyer contacted me and gave me a verification of skill. The letter template only lists a few points and says it cannot be changed. However, I feel it is very unreliable. I worry more about it will attract a large number of local people to apply when the job is advertised. Have you tried using this small amount of simple skills, people have successfully passed the PERM labor certification in the end? Would it be better to write more skills?

Mr. Lee answers,
It appears from your fact situation that you have already gone over all of your skills with the attorney and he or she has given you a template of an experience letter based upon what he or she believes are the relevant skills to be required in the labor certification application. Please note that the education, experience, and other skills in an application are based upon what the employer requires and not necessarily what the applicant possesses. For example, an applicant may have 20 different kinds of skills, but the employer only requires three or four of them as relevant to the offered job. The Department of Labor requires the employer to list its minimal requirements for the position. If you believe that the attorney is failing to recognize relevant skills for the position taking the employer’s needs into account, you should contact him or her to explain their relevance and why they should be included as requirements in the PERM application.

3. PWD can be used for the same position and multiple people

I am applying for employment green card under EB-2. My lawyer told me that my job description and background were very similar to another colleague in the company, and suggested to use his prevailing wage determination (PWD) directly, saying that way, I could skip my job posting and could start 9089 form directly. Is it possible to do like this? That means the PWD follows the job instead of the person. If I meet the same job requirement, I can skip the job posting process?

Mr. Lee answers,
Labor certification applications are for individual applicants –that being said, a prevailing wage determination (PWD) can be used for multiple individuals having the same position with the same requirements. In such case, the attorney or other preparer of the application must ensure that the job is the same, the offered wage to the alien is at least at the prevailing wage level, and that the alien’s education, work experience, and any special requirements of the ETA-9141 prevailing wage form are met by all applicants using the prevailing wage determination. If any parts of recruitment pursuant to the prevailing wage determination have been completed, they can usually be used in connection with the ETA 9089 PERM application forms of other individuals. Recruitment is only good for 180 days from the date of PWD issuance where the recruitment was begun prior to the date of issuance, or 180 days from the date of first recruitment if recruitment was begun after the PWD was issued. So you should ensure that your case fits within the parameters of the ETA 9141 and that it is submitted on time in the event that you and the attorney choose to use the already issued PWD for your case.

4. EB-2 and EB-3 can apply at the same time

Currently, I have the I-140 employment-based immigration approval under EB-2, but the priority date is still many years away, and it could take three to five years. Recently EB-3 category’s priority date has moved forward. Is it possible to file an EB-3 I-140, to keep EB-3 and EB-2 at the same time, instead of downgrading? In this case, whichever comes first can be submitted first.  Are there any risks in doing so?

Mr. Lee answers,
It is entirely possible to file another I-140 under EB-3 even if you already have an approved I-140 under the EB-2 preference category. What you are asking is commonly done, and we have done so many times for our Chinese and Indian clients. When the priority date becomes current for one of the categories, you could file for adjustment of status under the petition that has visa availability. We do not see the risk in doing another petition unless the petitioning organization can no longer support the prevailing wage of the labor certification (we assume that this is a labor certification based case).

5. The old and new companies overlap for 1 month, you should answer truthfully

After being laid off, I continued to stay on payroll for three months. During that period, I found a job, and there was a one-month overlap between the last day of the previous employer’s payroll and the first day of the new company. In this case, what date should I put down on the form as the last day of my former employer when the new company applies a green card for me?

Mr. Lee answers,
There is no easy answer to your question. The issue you are likely attempting to address is how to handle the 60 day grace period that H-1B holders are allowed to find another organization and have that organization file a H-1B transfer petition. Did your old company consider the layoff to take effect at the beginning of the 90 days or sometime later? Did your old company send a letter of termination immediately to USCIS or did it do so later? If you are relying upon a statement of prior experience from the old company, what dates will it attest to as your time of employment? Generally, the best policy is honesty taking the above or any other factors into account.

 

1. Receiving the immigration letter does not mean that the I-485 will be approved

I am now in OPT status. I submitted my immigration application and the priority date is September 2022. At the end of last year, I sent my I-485 to USCIS, and I went for fingerprinting in March this year. I recently received a letter from the Immigration Bureau asking me to submit some additional materials. Does this mean that my case is being handled? I don’t think my priority date is current yet, and my I-131 and I-765 application are still pending. I just want to know when can I get my combo card? That way I can go back home.

Mr. Lee answers,
Receiving a request for information from USCIS in an I-485 application means that someone at the agency is looking at your case, but that does not mean that your case will be approved since the priority date is not current. Cases cannot be approved before immigrant visas are available. It is difficult to say when your employment authorization and advance parole applications will be approved. Your fact situation does not say when you applied for the benefits, but I will assume for purposes of the question that you applied for them also in September 2022. At that time, USCIS had decoupled applications and was no longer issuing combo cards. (We have recently seen the resurrection of such in a few recent I-485 cases requesting both benefits, which is a good sign). Current USCIS published processing projections for the vast majority of its cases by service center are the following:

Advance Parole: Texas Service Center – 17.5 months; Nebraska Service Center – 11 months; California Service Center 18 months; National Benefits Center – 11.5 months; Vermont Service Center – 8 months.

Employment authorization: Texas 17 months; Nebraska 17 months; California 18.5 months; NBC 11.5 months; Vermont 15 months.

It may unfortunately take some time for USCIS to issue you these benefits. I note that we have had some recent I-485 filings in which advance parole/employment authorizations came quickly and even in the form of combo cards. While grateful for these cases, we believe that USCIS should seriously work on its backlogs.

2. The status of the case does not reflect the processing status

Yesterday I received an update from USCIS that my I-765 card was issued. But the strange thing is that I-131 on myUSCIS shows case closed, but the status on I-485 and I-130 are still under review. Is this normal? This morning I received 5 more emails from the USCIS, saying that they are going to process my case, but the online case status is still the same as yesterday. Is my I-485 going to be approved? Or is there a combo card first?

Mr. Lee answers,
USCIS does not generally close out an I-131 advance parole request when related to an I-485 adjustment of status to permanent residence filing unless the I-485 is being approved. We have had situations in which I-765 employment authorization requests have been approved when the I-485’s have been on the cusp of being approved. (We recently had such situation about a month ago). It may very well happen that you will receive unofficial and later the official notice of the I-485 approval. The online case status system does not always reflect current conditions in a case’s processing. Whatever is placed on the online case status system is only as current as the individual officer or clerk inputting information into the system.

3. Engineers worked in a China state owned enterprise usually do not affect immigration

My I-140 petition has been approved and I can now file the I-485 form. I looked at the form and found that I had to fill in my previous overseas work experience, even if it was 5 years ago. I used to work in a state-owned enterprise. Does this work experience affect the I-485 application?

Mr. Lee answers,
Form I-485, Page 5, Part 3 requests employment history for the last five years whether inside or outside the US. Page 6 of Part 3 requests that you provide your most recent employment outside of the US if not already listed. So an applicant is obligated to provide the information of most recent non-US employment even if not within the past five years. The information can be used to check back on representations made by applicants when they filled out visa applications to the US in the past. Depending upon the level of the position, work experience in a state-owned enterprise in China may raise questions of whether the applicant was or is a member of the Communist Party. While an engineer in such an enterprise may not raise eyebrows, a director in the enterprise could cause questions to be asked.

4. Different immigration categories have different processing times

I would like to know how the Immigration Bureau will give the number? Is it the date according to Priority Date? Or the date the I-485 was filed? For example, many of the I-485s in front of and behind the number MSC2390198XXX show card making or approval. Shouldn’t the I-485 be processed according to the smoothness of the number? Can you still jump in line?

Mr. Lee answers,
A USCIS case number is assigned at the time that an application or petition is receipted by the agency. Case numbers are chronological by service center, e.g. Vermont Service Center (VSC), California Service Center (WAC), National Benefit Center (MSC). The first two numbers indicate the year and the rest the chronological number of the application receipted during the year. The priority date of cases for family-based petitions is the date of receipt while priority date for employment based cases is either the labor certification receipt date (where a labor certification is involved) or receipt date where there is no labor certification, e.g. EB-1, NIW. Cases are generally processed chronologically, but they are processed chronologically according to the type of case. There are different processing times for the different categories of family-based and employment-based cases. Expediting a case out of line can be done where USCIS offers premium processing for a certain fee. Without such, it is very difficult to expedite an application or petition. Under USCIS guidelines, it may expedite a benefit request if it falls under one or more of the following criteria or circumstance:

• 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;
• 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;
• 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.

 

 

1. To Apply EB-1A, You Must Show that Your Immigration Will be of Benefit to the US

I am in my fourth year of PhD and I am preparing documents to apply for EB-1A. The lawyer asks for an employment letter which would state that after my graduation I would be hired. My school advisor already knew that I would not stay as a postgraduate student, and I wrote in my NIW I also indicated that I would find a job in an industrial field. So if there is no offer letter from my advisor, my lawyer said I had two other options: one is get an offer letter from others; the other is actively applying for jobs. My questions are: 1. Is it too late to find a job now? 2. The document says that the advisor’s offer letter is the best of these three. Therefore, is it for a doctoral degree graduate to apply for EB-1A with a postdoctoral offer? 3. If #2 is true, is there any bad influence if I don’t go for postdoctoral degree?

Mr. Lee answers,
You can generally start a green card EB-1A case whenever you choose and unless you have some unusual time pressures, it is not too late to find a job that can give you an employment letter. On the type of job and your lawyer’s document saying that the school’s job letter is the best among the three options, it may well be that your education and extraordinary knowledge are best used in a research capacity and that academia may offer the best opportunity. Although the EB-1A category criteria are different from those of a national interest (NIW) case, you must still be able to show that your immigration will be of benefit to the country. If you are able to secure a position in industry in which you will be able to utilize your knowledge and skills in an advanced manner, e.g. scientist as opposed to technician or analyst, such might also be an acceptable offer of employment.

2. Don’t Let I-485 Fall into a Black Hole Because of EB-1

I applied for EB-1, but received RFE for I-140.  I have filed an EB-2 application and I-140 has been approved.  Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE?  I am worried about my application going into a black hole.

Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.

3. EAD Processing Time is About 3.5 to 6 Months

I found a job in a lottery-free school, and the school promised to help me apply for H-1B, and I can apply for a green card after three years. My wife needs to apply for H-4. How long does it take for H-4 to apply for work authorization (EAD)?

Mr. Lee answers,
Under current law, a H-4 spouse is only eligible for an EAD under one of two situations – the H-1B principal has an approved I-140 petition or the H-1B is applying for an extension past the normally allowable six year time limit of H-1B status based on having filed either an employment visa petition (I-140) or labor certification application & 365 days have elapsed. I imagine that the first situation will likely occur before the latter. As your school will only apply for the green card after three years, the timing after that will depend upon how long a labor certification will take, or if the case is being done without labor certification, how long it will take for you to obtain the I-140 approval after three years. Following that, your spouse could then apply for the EAD and the further timing would depend upon the processing time of the relevant USCIS service center. Currently, such EADs are being processed anywhere from 3.5 – 6 months (current published processing times) dependent upon which service center is involved.

4. Priority Date Could not be Transferred to Spouse

My current situation is that my EB-1B has just been approved, but because EB-1 is not current, I have to wait for the priority to become current. The conservatively estimated time is about 1 to 2 years before I-485 can be submitted.  I did not apply for EB-2. My teammate has an EB-2 with a 2019 PD. I would like to know if I can this link my EB-1 to his EB-2?

Mr. Lee answers,
There are certain situations in which priority dates are transferable from one case to another, but they invariably involve the same person. For example, if you had a 2019 EB-2 approval, you could have used it in support of your EB-1 I-140 petition to request the earlier priority date. However, even if you were married and your spouse had a 2019 priority date, that could not be transferred to your petition. Each petition must go its own way.

5. In Case of any Difficulty, Please Contact the Immigration Contact Center First

I hold a green card and have met the requirements for naturalization. After I asked for a rescheduled appointment for my first naturalization interview due to physical discomfort, I suddenly received a letter from the US Immigration Service a month ago, informing me that I did not show up for the interview and that I had not contacted the US Immigration Service. After that, I made several phone calls and online contacts with the USCIS, and they all said that the application for the repeated appointment was approved. Last week, I suddenly received a notice from the field office, saying that I did not go to the interview for no reason, so the naturalization application has been administratively closed. I’ve written to the local field office to explain the situation, but am still concerned. Excuse me, can I ask the local MP for help in this situation?

Mr. Lee answers,
Your example is the reason why we always encourage our clients to make it to USCIS appointments if at all possible. USCIS will occasionally do what it did in your situation. Yours is not a rare situation. That being said, probably the best way to communicate with USCIS is to bring up the matter with its Contact Center which can be reached telephonically at 1-800-375-5283 from 8 AM-8PM EST. Writing to the local field office is no longer the preferred way of reaching out to the agency. If you wish, you can reach out to your local member of Congress for assistance, but you may also wish to try the Contact Center first.