Month: August 2023

Arthur Lee, Esq. Article:
Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications.

While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.

In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.

While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.

Arthur Lee, Esq. Q&As:
1. The online query of PERM labor certification database is inaccurate

A reader asks:
I was laid off by the company. I heard that the company cannot file PERM application within half a year after layoff. Where can I check the current PERM status of each company?

Arthur Lee Esq. answers:
A company can file a PERM application within 6 months of a layoff or reduction in force. However, there are additional caveats when a company chooses to do so. If the company has had a layoff in the area of intended employment within 6 months of filing a PERM application, and the layoff involves the occupation for which the certification is sought, or a related occupation, then the company must disclose this on the application to Dept. of Labor. In addition, if such a layoff occurred in this 6-month period, the company must notify and consider previously laid off U.S. workers in the related roles for the PERM position for which certification is sought. A notification to a previously laid off worker in the same or related occupation must provide a full description of the specific job opportunities, include clear instructions, and invite the worker to apply for the position. Unfortunately, we do not believe that there is an online forum effectively showing which companies have filed PERM applications in real time. Although the filing of PERM is public record accessible through official FOIA (freedom of information act) requests, there does not seem to be an Internet website accurately showing in real-time which companies have filed PERM applications on what dates. I note that there is one website (H1B grader) which has a green card PERM labor certification database, but I have tried it out and it is inaccurate.

2. A showing of job applications in the United States is not normally required for an EB-1A petition.

A reader asks:
When the lawyer was preparing the EB-1A application, he asked to submit some job application evidence, which is probably my application record for finding a job in the United States. I’m currently working outside the  US, and it’s not realistic to apply for jobs now. Since getting a green card is still far away, the law firm means that even a screenshot of the US job application record will be helpful. If there is no evidence of applying for a US job at all, the risk of RFE will increase in the future. I would like to ask, is this evidence really useful?

Arthur Lee, Esq. answers:
While I do not know the specifics of your EB-1A case, a showing of job applications in the United States is not normally required for an EB-1A petition. That being said, an EB-1A petition should include evidence showing that you will be continuing to work in your area of expertise and that your immigration will benefit the country. If you are currently working outside the United States in your area of expertise, that can serve as good evidence that you will continue to work in this area of expertise. If you have a long history of employment in the area of expertise, and you have maintained excellence in this area to this date, that may serve as good evidence as well. USCIS evaluates whether you will continue to work in your area of expertise through a look at the totality of your circumstances. For instance, if you have been an extraordinary musician, but have not been maintaining your practice of music and have been engaged in other fields—like say, accounting, in your recent history—USCIS might not be convinced that you are coming to the United States to contribute your musical talents, rather that you are coming here to make a living in a different field. If your lawyer is asking for evidence that you have applied to certain US jobs, it is likely that he/she believes that there is not enough evidence that you are able to engage in your field of extraordinary ability when you come to the US. If that is the case, then applying to US jobs in your field of expertise may be some useful evidence. Other, perhaps useful evidence would be your current work in your field of expertise regardless of location and an overall showing that you maintain a passion in that field that you will continue indefinitely. 

1. Applying for NIW must show you can advance the national interest

A reader asks:
I am in China, and I consulted an American lawyer by email, and the reply was I met the requirements of NIW and can sign a contract.  However, I was told that I must work in the relevant field for at least half a year after getting the green card, otherwise the green card could be revoked. It is difficult for me to do that because my major is education and I have been in China, so I apply for NIW which an employer is not required. If I really must find a job in the same field after entering the US, I will have to reconsider whether to apply for NIW. What should I do?

Arthur Lee answers:
Assuming that you get your EB-2 NIW is approved and you go for your visa interview, you should demonstrate how you plan to utilize your knowledge and skills to advance the national interest per your EB-2 application, for which an employer was not required. You may independently perform research, for instance, if your EB-2 NIW was research-related, or try your best to find an employer in the field of endeavor. While every NIW case is different, your ability to advance the national interest through your work as well as your intent to do so must be made clear to a consular officer.

There is a possibility that if you do not enter the position or endeavor promised on your EB-2 NIW application, your green card will be revoked. One way in which revocation would occur is in the naturalization (citizenship) process. At that stage, you would be expected to produce 5 years of tax returns and employment information. Also, an officer may ask you how you petitioned for your green card, and what job you performed upon entering the United States. While many adjudicating officers may not thoroughly ask about this, the few that do could find that you obtained your green card on false pretenses and begin proceedings to revoke it. I also note that in such a case, USCIS would issue a notice to appear (NTA) to initiate removal proceedings, and you would remain a permanent resident until the immigration judge issues a final decision. 

If you are not confident in your ability to advance the national interest as proposed in your EB-2 NIW application (whether through self-employment or through employment with another company), then you may decide to seek a different route to getting a green card, such as a PERM labor certification.

2. The filing of an I-140 petition may impact F-1 visa approval

A reader asks:
I am currently working in China. Last year, I filed I-140 immigrant petition, the priority date is already current in the second half of last year. Due to my personal reasons, I want to apply for a PhD to return to the United States for further study. Since F-1 is a non-immigrant visa, and the time for a doctorate is relatively long, will the approval of the application have a relatively serious impact on the application for F-1?

Arthur Lee answers:
The filing of an I-140 petition may impact F-1 visa approval, which requires non-immigrant intent. That being said, you may be able to secure an F-1 visa if you bring clear evidence to the consular interview that you intend to return to China after your studies. You should bring evidence that you have ties to China that you do not intend to abandon including but not limited to property ownership or unexpired residential lease; family ties such as spouse, children, or parents; investments and financial assets in China; and demonstration of social relationships and involvement in your local community. You may also explain to the consular officer that your desire to take a nonimmigrant visa despite your possession of an approved I-140 with a current priority date with which you are eligible to enter the US with a green card is evidence itself of your intent to return to China. 

If you desire to maximize your likelihood of obtaining an F-1 visa, you may request a withdrawal of your I-140 petition. Of course, this would likely eliminate your chances of coming into the United States as a lawful permanent resident for the foreseeable future.

Alternately, you can continue your green card case and enter the U.S. with an immigrant visa assuming that you pass the consular interview. Once you have a green card, you are eligible to attend school for PhD study without getting an F-1 visa. By the same token, you must engage in employment as promised on your I-140 petition for a reasonable time period. During your initial months in the United States, you may attend school as long as you can fulfill your job responsibilities on a full-time basis as stated in your I-140.

3. USCIS may apply previously captured fingerprints to many new cases

I submitted my I-485 application at the beginning of November last year and it was sent to SRC, but I haven’t received the fingerprint notice yet. It has been a long time, and I checked the case status extensively. The cases with same middle two numbers had rarely been fingerprinted, but the latter numbers’ cases had all been fingerprinted. What’s happening here?

Arthur Lee answers:
As a rule, all I-485 applicants between the ages of 14 to 79 are required to be fingerprinted for the purpose of conducting security clearance and criminal background checks. To increase efficiency, USCIS has in the past few years applied previously captured fingerprints to many new cases, but if USCIS is applying your old fingerprints to your I-485 application, it would have sent you a notice stating so. If you have not received a fingerprinting notice yet, you may file an e-request through the USCIS website to inquire about why you have not received your biometrics appointment yet.

1. Laid off H-1B employee, where the employer did not withdraw the approved H-1B, may be able to have a successful H-1B transfer

A reader asks:
This year is my last year of OPT, I finally won the H-1B lottery, but was laid off. My question is if I find a new job now, is there any way I can transfer this H-1B? I understand that the best H1B situation is after 10/01, I need to take two paychecks before leaving, but now I was laid off. What to do?

Arthur Lee answers:
Technically, since a cap H-1B petition is only valid starting on 10/01, you are not in valid H-1B status yet. By rule, you are not eligible for an H-1B transfer. This is USCIS’ official position. However, we have heard of a successful H-1B transfer where the party did it before his 60 day grace period was up, and his employer who laid him off did not withdraw the H-1B approval prior to 10/01. Other than that, your best options are probably to return to school for another year of study, or find another nonimmigrant employment pathway with another company willing and able to hire you such as but not limited to O-1, L-1, or E-1/E-2/E-3 if you qualify.

2. When the H-1B was not approved, the H-1B lottery spot could not be preserved 

A reader asks:
In 2016, I won the H-1B lottery but was requested RFE for additional materials. Later, at the end of June, the company suddenly terminated my work contract and cancelled my H-1B application. At the beginning of July, I returned to China immediately.  Now I have just returned to the United States after the epidemic. Can my H-1B be saved? Does it mean that I don’t need to draw the lottery again but only find a company that is willing to sponsor me? 

Arthur Lee answers:
Unfortunately, as your H-1B was not approved, you have never been in H-1B status. As such, your H-1B lottery spot has not been preserved. You cannot transfer an H-1B status which was not initially approved. Therefore, you will be subject to the lottery unless you apply for an organization that is cap exempt such as a higher educational institution, nonprofit organization affiliated with an institute of higher education, nonprofit research organization, or government research organization.