As published in the Immigration Daily on December 13, 2023

October marks the beginning of the government fiscal year, in years past signaling a new year of visa numbers. August and September were generally “dead” months as we eagerly awaited the new visa allocations of October. Now after minimal bulletin changes from October-December, we get a visa bulletin chock-full of changes. Why? Have Visa Office operations changed so much that significant date changes must wait until the second quarter of the fiscal year?

That being said, the January visa bulletin is designed to bring smiles to the faces of many as there are no retrogressions, only advances.

Family-based final action dates: F-1 (adult single sons and daughters of US citizens) remained the same for ROW (Rest of the World) at 1/1/15 while Mexico and the Philippines remained at 5/1/01 and 3/1/12 respectively; F-2A (spouses and children under the age of 21 and unmarried of LPRs) advanced almost 9 months to 11/1/19 for all countries except Mexico which advanced 8 ½ months to 10/22/19; F-2B (adult single sons and daughters of LPRs) one week for ROW to 10/1/15 and the big jump was Mexico advancing 17 months three weeks to 10/22/03 while the Philippines remained at 10/22/11; F-3 (adult sons and daughters of USCs) up 3 ½ months to 4/22/09 for ROW and Mexico advanced 5 months 2 weeks to 9/8/98 and the Philippines remained at 6/8/02; and F-4 (siblings of USCs) ROW moved one month to 5/22/07, India advanced one month one week to 11/15/05, Mexico stayed at 9/15/00, and the Philippines moved one month three weeks to 10/15/02.

Family-based dates for filing: No changes.

Employment based final action dates: EB-1 (extraordinary aliens, outstanding professors and researchers, and multinational executives and managers) stayed current for ROW with China advancing four months three weeks to 7/1/22 and India three years nine months to 9/1/20; EB-2 (advanced degree holders or exceptional aliens) ROW advanced three months two weeks to 11/1/22 with China being up two months one week to 1/1/20 and India two months to 3/1/12; EB-3 (professionals or skilled workers) ROW moved up nine months to 8/1/22 with China advancing eight months one week to 9/1/20 and India one month to 6/1/12; EW-3 other workers (unskilled) ROW advanced one month to 9/1/20 and China one year to 1/1/17 and India one month to 6/1/12; both categories of EB-4 (religious) moved to 5/15/19 for all countries, representing an advance of four months two weeks for clergy and the reopening of the category from unavailable for certain religious workers because of passed legislation; EB-5 ROW (immigrant investors) remained current with China advancing two months one week to 12/8/15 and India one year 11 ½ months to 12/1/20. All set aside EB-5 numbers remained current. 

Employment based dates for filing: EB-1 ROW remained current with China advancing five months to 1/1/23 and India 1 ½ years to 1/1/21; EB-2 ROW moved up one month two weeks to 2/15/23 while China and India remained the same at 6/1/20 and 5/15/12 respectively; EB-3 ROW remained at 2/1/23 while China advanced 10 months to 7/1/21, India remained at 8/1/12 and the Philippines at 1/1/23; EW-3 other workers remained at 12/15/20 while China remained at 6/1/17, India at 8/1/12, and the Philippines at 5/15/20; both categories of EB-4 moved up six months for all countries to 9/1/19; EB-5 ROW remained current while China and India stayed at 1/1/17 and 4/1/22 respectively. All set aside EB-5 numbers remained current.

For the month of January, USCIS still continues to use dates of filing for both family-based and employment-based cases for adjustment of status.

One hopes that visa chart progression continues in coming months, but such will seemingly depend upon the inner operations of the State Department.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on December 10, 2023 : 1. All Evidence Should be Provided When Receiving RFE 2. Your EB-3 Priority Date Sometimes Can Be Used for Your EB-2 NIW 3. You May Leave the United States and Wait for Your Priority Date to Become Current While You Are Overseas

1. All Evidence should be Provided When Receiving RFE

A reader asks:
I am the main applicant and received the RFE letter from USCIS yesterday, and my wife also received the RFE letter. My letter mainly asked to prove the authenticity of the job offer, and when I submitted the I-485, I filed the I-485j together. I don’t know why I still need to prove the authenticity of the job offer. I don’t know why USCIS will ask me to provide information such as company financial statements? Mine is a large company, and information such as financial reports is public, and there is no possibility of problems. How should this question be answered? The wife’s letter requires proof of two things. One is to prove F-1 and OPT status. We intend to provide transcript proof directly. Not sure if a transcript is enough? Is there anything else that needs to be provided? The second is to require proof of legal status during the OPT extension. We have provided the I-20 and EAD card during the original filing, which shows the identity of the OPT extension. I don’t know why it is still required to provide proof materials? What other supporting materials do I need to provide?In fact, I feel that the materials required by the officer are not very important. For example, my company’s information and the two items my wife studied can completely pass the I-20 certificate that has been submitted. I really don’t understand what USCIS is trying to prove?

Arthur Lee Esq. answers:
You should understand that USCIS is an imperfect agency with officers of many different levels—some are better trained than others. As such, some officers will ask for further documents for things that other officers may conclude have already been proven. Some officers will know that a large, profitable, publicly traded company will have the finances to pay your salary. Others may not do their due diligence and research the companies on their own. Regardless, if you receive an RFE, it is a great idea to comply and provide all the evidence that the RFE asks for. RFEs will typically specify the types of documents that you should provide to fulfill the request. You should gather as many of those listed documents as possible to satisfy the adjudicating officer. Besides all the listed documents, I would advise you gather the following: (1) to prove the authenticity of your job offer, you may submit a signed letter from your company verifying your employment (specifying the date you were hired, that you are fulltime, what your position is, and your salary), as well as 2-3 months worth of recent paystubs; (2) if USCIS wants to verify the company’s finances, you may request the tax returns from your company, or in your case since it is a public company, just submit the most recent year’s tax returns and/or public financial documents such as the company’s 10-K, and/or a statement from the chief financial officer concerning the size of the company, your salary, and that the company is willing and able to pay the salary upon your obtaining permanent residence status; (3) USCIS typically requires a showing of maintenance of legal status at all times in the US for employment-based green care cases—so your wife must show that she has been in legal status for the time she has been in the US. Therefore, she should give in all I-20s since arriving in the US, diplomas and transcripts for all studies in the US, a letter verifying employment on her OPT status, as well as 2-3 months worth of recent paystubs.

2. Your EB-3 Priority Date Sometimes Can Be Used for Your EB-2 NIW

A reader asks:
My company is going to help me apply for EB-3. I plan to apply for NIW by myself, then resign and return to China to wait for the schedule. Excuse me, if so, can the PD of my company’s EB-3 be used in NIW? After I resign, the company’s EB-3 PD will no longer be available?

Arthur Lee Esq. answers:
You can use the priority date of your company’s EB-3 for your EB-2 NIW case only if certain conditions are met. Please note first that the priority date under EB-3 will be the date on which the PERM labor certification application (ETA 9089) is filed, which is after your sponsoring company performs recruitment and a test of the U.S. labor market. You may retain your priority date as long as your EB-3 I-140 is approved, and not subsequently revoked for fraud or misrepresentation, material error, or revocation of or invalidation of the labor certification. As long as all of these conditions are met, you may retain your priority date for an EB-2 NIW filing.

3. You May Leave the United States and Wait for Your Priority Date to Become Current While You Are Overseas

A reader asks:
I applied for NIW in the United States in March this year, and I-140 has been approved. After that, I will submit I-485 when the pd current of NIW is current. Recently, I want to go to Europe or other countries to study a related professional PhD. May I ask, in this case, is it still useful to apply for PD in the United States? If it is possible, will it not be approved when I submit I-485 later? If you can re-enter the United States, what visa should it be?

Arthur Lee Esq. answers:
You may leave the United States and wait for your priority date to become current while you are overseas. As such, you can leave the United States and go to study in Europe without affecting your priority date and your eligibility for the green card. Then when you are in Europe, if your priority date is close to current and the I-140 was marked for overseas processing, you may file a DS-260 immigrant visa application to apply for consular processing and obtain permanent residence upon entry to the United States assuming your interview was successful. Or if you wish to come back to the US after your study is done and subsequently apply for an I-485 adjustment of status application for permanent residence, you should apply for a visa that is appropriate for your situation. It would be best if you filed for a “dual intent” visa that allows you to enter the United States whether you intend to stay permanently or return to your home country. H-1B and L-1 visas, for instance, are dual intent visas. An O-1A or O-1B (although not) is also often treated by adjudicating officials as a dual intent status. If you come in on a visa that does not allow dual intent, such as a B-1/B-2 visitor visa, and then apply for an I-485 based upon your approved NIW, you risk being accused of misrepresentation by an adjudicator. A USCIS adjudicator may find that you had intended to enter and remain in the United States on such a visa that can only be granted to somebody who intends to leave the United States before expiration. Therefore, in your situation assuming that you definitely leave to go to Europe and study, your best alternatives would be to either: (1) apply for a green card at an overseas consulate when your priority date becomes current and enter the United States as a permanent resident assuming you pass your immigrant visa interview; or (2) come back into the United States on a dual intent work visa such as H-1B or L-1 assuming that you qualify for one of these, then apply for I-485 when you are in the United States. On possibly entering the United States on a non-dual intent visa such as an F-1 schooling visa or B-1/B-2 and applying for adjustment of status once your priority date becomes current, the question of intent could possibly be helped by the interim of time that passes from your entry and the filing of Form I-485. I also note that it is positive that you are studying for a PhD related to the field of your NIW endeavor since that will help demonstrate to an immigration officer that you are committed to your field of endeavor as stated on your approved I-140.

Alan Lee, Esq. Q&As published on the World Journal Weekly on December 3, 2023 : Re-entry Permit

A reader asks:
I handed in my re-entry permit at the end of December last year. On January 23 this year, I received a notice that the finger print was taken, which means that the fingerprints recorded before can be reused, and there is no need to print them. At present, I am considering returning to China for a year, and I have already returned to China, and I am applying for a reentry permit at the same time. However, the case has been stuck here. According to the USCIS website, the current reentry permit takes 17 months. I wonder if it really takes this long? If I still can’t get down, do I have to return to the United States?

Alan Lee, Esq answers,
Although the official USCIS published processing time for 80% of reentry permits is currently 17.5 months, that does not mean that your application will pend for that long. In looking at our recent past cases, we have had reentry permits approved taking as long as 19 months and as short as 9 months. The permanent resident card (green card) only allows the holder to be outside the United States at maximum 364 days. If you have not received the reentry permit, we strongly advise you to return to the States within the time permitted on the green card. If you stay outside the one-year limit, you would essentially be relying on the reentry permit being approved and shipped to you overseas for your entry back to the States after one year. A problem with approval or your residence receiving it in the US or with shipping it to you overseas could endanger you permanent resident status.