2023 – Page 2 – Alan Lee

ALAN LEE, ESQ. SUPER LAWYER FOR 2023 IN NEW YORK METRO AREA

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 12^th 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“

Article: ARTIFICIAL INTELLIGENCE WORKER IMMIGRATION – PART 2 by Arthur Lee, Esq.

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. https://www.ctvnews.ca/canada/health-care-workers-science-and-tech-experts-targeted-in-new-canadian-fast-track-immigration-system-1.6459698

[2]Id.

[3]American Action Forum, “Expediting Immigrant Labor Certification: What Are the Options?” Isabella Hindley. April 19, 2023. https://www.americanactionforum.org/insight/expediting-immigrant-labor-certification-what-are-the-options/

[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. https://www.jec.senate.gov/public/index.cfm/democrats/issue-briefs?ID=BDFE9EB0-1E17-4BA2-B3D0-C13A6CF31123

[5]Id.

[6]Id.

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

[8]Id.

[9]Id.

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.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. Company’s hiring freeze may affect PERM application 2. To apply for a PERM green card, the employer must be willing to hire full-time employees 3. To track for case processing times

1. Company’s hiring freeze may affect PERM application

A reader asks:
The company is hiring freeze, but there is no layoffs. The departments that need to recruit are referred internally; it means there is no recruitment externally. If this is the case, can I still apply for a green card? Specifically which part will be affected? PWD, AD, or PERM?

Arthur Lee Esq. answers:
If there is a hiring freeze, the part of your application that may be affected is mainly the advertisement and recruitment stage. The PWD will not be affected since that is just a determination of your wage level and position by the Dept of Labor based upon the job description provided by your company. The ETA 9089 (ie PERM) is not affected as it asks a company to disclose whether it has had a layoff in the past 6 months in positions related to the one you will occupy upon obtaining a green card. However, the recruitment phase may be affected because the company will have to perform external recruitment for your position in its test of its labor market before you can be certified under PERM. This includes placing a job order with the state workforce agency, doing an internal posting disclosing that it will offer you a position at a specified wage, posting 2 Sunday newspaper ads in the area of intended employment, and 3 alternate forms of recruitment such as but not limited to website posting, 3rd party posting such as on Indeed or Monster, local newspaper ad, radio/TV ad, or college recruitment assuming that this is a professional position. If the company receives resumes from U.S. workers who seem like they may be qualified for the position, your company will need to contact/interview these candidates. If a candidate is able, willing, qualified and available to take the position, the company will have to offer your position to that qualified/able U.S. worker in its test of the labor market. Therefore, the recruitment phase may be affected and you must discuss the above possibility with your employer and verify that it is willing to do external recruitment on your green card position to test the U.S. labor market during this hiring freeze.

2. To apply for a PERM green card, the employer must be willing to hire full-time employees

A reader asks:
I am currently working as an engineer in a company with a work visa. What is certain now is that the company will no longer recruit full time engineers in the future, but will turn to outsourcing to find contractors. Excuse me, will this affect my PERM application and the advertisement before application?

Arthur Lee Esq. answers:
It depends on the circumstances of your case. First, your employer must understand that if your PERM case is successful, it must hire you as a permanent fulltime employee upon your getting your green card. If your employer is not willing to do that, then there is no basis for your PERM labor certification case. Second, during the recruitment process, your employer must test the labor market and interview all apparently qualified candidates for a fulltime engineering position. At this stage, there must be a willingness on the part of your employer to hire a fulltime engineer. Since your employer is testing the market for your proffered fulltime position, it must be willing to replace you with a qualified and willing U.S. worker who meets the qualifications as a fulltime employee if such a person applies and your employer has no other open position. As a side note, if there is a layoff in the engineering position in the six months prior to filing ETA 9089, your employer would need to notify and consider previously laid off workers in the engineering roles for your PERM position.

3. To track for case processing times

A reader asks:
It has been 3 months since I did fingerprints for my I-485. My application number is in the MSC239019 section. I finished fingerprinting in February, and it has been over 4 months. The case status is still showing “Case Was Updated.” When do I need to check with EMMA to speed up my case process?

Arthur Lee esq. answers:
I-485 processing times vary based upon the type of I-485 you are filing eg. employment-based, family-based, asylum-based, etc., and which local field office is adjudicating your I-485 application. The field office adjudicating your application will typically be your geographically-located local USCIS field office. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type (I-485, and specify which type), and your field office, and the website will inform you of the normal processing times for your type of I-485 application. You can also enter the date in which your I-485 application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest or chat with EMMA to place a service request to inquire about the status of your case.

Article: ARTIFICIAL INTELLIGENCE WORKER IMMIGRATION – PART 1 by Arthur Lee, Esq.

As published in the Immigration Daily on October 10, 2023

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

Part 1 – The Artificial Intelligence Immigration Problem with PERM and the NIW Option

The introduction of ChatGPT, Bing Chat, GitHub CoPilot, and all the other variations of artificially intelligent chat bots has ushered in a new age of artificial intelligence (AI) which has created a boon in demand for AI-specialized employees. Per Forbes Advisor, the AI market size is expected to reach $407 billion by 2027, and AI is projected to create 97 million jobs worldwide.[1] Since AI is the next disruptive phenomenon of human advancement and will likely drive the global economy in the near future, nations are vying for leadership in this space. While the United States had been a top tier attractor of global talent for important endeavors in the past, the highly restrictive immigration policies for business-related immigrants and visa holders combined with long wait times and uncertainty may deter top AI talent from working for US companies. This could result in the US losing leadership in the global economy and lagging other countries such as China or even neighboring Canada in AI competence.

The difficulties in attracting high-end AI talent with respect to US policy in affording legal status and permanent residence to such employees include the following:

The lack of a direct classification for AI specialists when it comes to sponsorship for permanent residence. Employers and their attorneys typically sponsor AI employees under EB-2 or EB-3 utilizing job titles that match closely with jobs officially recognized by the Department of Labor (DOL). When a job does not have a direct match with a “generic” Department of Labor title and duties, the sponsoring employer typically “couches” the employee’s duties/title toward one that is recognized by the DOL. For instance, according to techtarget.com, one of the top AI jobs in demand is an AI Product Manager.[2] Of note, there is no official DOL O*NET entry for “product manager” let alone “AI product manager.” The same applies for machine learning engineers, natural language processing engineers, and many other common AI jobs. This causes sponsors to have to modify their employees’ jobs to fit the mold of a recognized DOL job–a task which is comparable to fitting a square peg into a circle. Along with this comes uncertainty as to whether the Dept of Labor will recognize the AI job at a specified wage, and ultimately whether a green card petition will be approved.
The unacceptably long time it takes for the PERM labor certification and sponsorship process to complete. The Department of Labor lacks the resources to issue expedient prevailing wage determinations and labor certification approvals. After submitting a proposed job to Department of Labor via ETA 9141, it currently takes about 6 months to receive a prevailing wage determination. After that, the test of the US labor market usually takes about 3-4 months, then the employer can submit a PERM labor certification application (ETA 9089). The DOL is now taking approximately 11-12 months without audit to issue a decision on the labor certification. Once certification is received, the employer may file an immigrant visa petition (I-140) on behalf of the AI employee. (Concurrent filing with Form I-485 is possible where the priority date has reached the visa availability date, but is likely not available in most cases currently in light of the backlogged availability dates). The I-140 takes about 6 months or so for adjudication. Once the employee’s priority date (the date that ETA 9089 was submitted) is current, the foreign worker can apply for the green card (Form I-485).

Even assuming there is current visa availability (for the Oct. 2023 visa bulletin, only the EB-1 category is current in all countries except China and India), the process from start to finish typically takes well over 2 years. It takes substantially longer for many applicants in jurisdictions in which employment-based I-485 applications are backlogged (e.g. the NYC field office processing time is listed as 21.5 months for such cases)[3]. For those from backlogged countries such as China or India, the process can take even longer–potentially greater than 10 years for India-born. This long period combined with the uncertainty of a positive result and the requirement for a foreign worker to maintain legal status throughout the green card process is a strong deterrent to top AI workers thinking of bringing their talents to the United States.

Due to the long wait and uncertainty of the PERM labor certification process, more petitioners have turned to national interest waiver (EB-2 NIW) cases to shorten the process. NIW cases can be filed by noncitizens alone or by companies petitioning for noncitizens. The EB-2 NIW allows a petitioner to skip the requirements of a job offer and a test of the US labor market if it can demonstrate that the employee’s proposed endeavor has substantial merit and national importance, he/she is well-positioned to advance that endeavor, and on balance, it is beneficial to the US to waive the labor certification requirement. In theory, a valuable AI employee working for a US company is engaged in a nationally important endeavor for the US to advance the country’s overall AI capabilities. However, the flexibility of the NIW requirements combined with the recent spike in popularity of EB-2 NIW lead to uncertainty and inconsistency in quality and timing of adjudications.[4] The EB-2 NIW is akin to a grant application. A foreign worker will express his/her case on the benefits his/her skills will bring to the United States and why the job offer requirement should be waived. The flexibility given to adjudicators for NIW applications brings uncertainty to the applicant. Especially as USCIS is now receiving significantly increased numbers of EB-2 NIW applications, there is more “competition” for favorable adjudications on this type of application. The more applications USCIS receives, the longer the EB-2 NIW processing times[5], and the more discerning USCIS officers will be on granting EB-2 NIW status. The more sub-par petitions USCIS receives (especially in one category such as AI), the more likely an adjudicating officer will be inclined to issue requests for further evidence (RFEs) and notices of intent to deny (NOIDs) and denials even in cases that are deserving of approval. Therefore, there is a chance that a highly qualified AI worker would be denied an EB-2 NIW. The EB-2 NIW adjudications, outside of objective evidentiary submissions such as awards, grants, and credentials, may therefore be decided in who can compile the most persuasive NIW applications and/or hire the best immigration lawyers.

[1] Forbes Advisor, “24 Top AI Statistics And Trends in 2023” by Kathy Haan (Apr. 25, 2023). https://www.forbes.com/advisor/business/ai-statistics/

[2] Tech Target, “10 Top AI Jobs in 2023” by Andy Patrizio (Aug. 17, 2023). https://www.techtarget.com/whatis/feature/Top-AI-jobs

[3] USCIS check case processing times (Form: I-485, Form Category: Employment-Based Adjustment Applications, Field Office: New York City NY) https://egov.uscis.gov/processing-times/

[4] The number of EB-2 NIW applicants has approximately doubled in one year. In Q1 of FY 2022, 4,883 applications were received. Form I-140 Immigrant Petition for Alien Worker By Fiscal Year, Quarter, and Case Status Fiscal Year 2022 (Q1-Q4) https://www.uscis.gov/sites/default/files/document/data/I-140_FY22_Q4.pdf. In Q4 of FY2022, the number jumped to 6,917. In Q1 of 2023, USCIS received 8,806 EB-2 NIW applications. The approval rate decreased from 93% in Q1 of 2022 to 84.6% in Q1 of 2023.

[5] Posted processing times for NIW cases are 11-14 months. There is an option for premium processing that confers a decision or further action within 45 calendar days. However, it comes at a cost of $2,500.

Q&A’s published on the World Journal Weekly on September 24, 2023: 1. I-140 has just been approved and I want to change jobs… 2. Apply for EB-1A on your own, not necessary need an employment letter

1. I-140 has just been approved and I want to change jobs…

A reader asks:
At present, my H-1B’s three years are almost used up and I am about to renew it. For the sake of legal status, I have been working in a small company with low wages. I consulted about job-hopping before, but they all suggested that I should try to change jobs after my I-140 was approved. At present, my I-140 has just been approved less than 180 days. I plan to start looking for a job now. My questions are:

1. At present, the processing time for PERM is getting longer and longer. If I switch to a new company, how long will it take to re-apply for PERM+I-140?
2. Are there any differences in the relevant policies for green cards of construction companies?
3. I requested to put the phrase of applying green card on day 1 in my contract, therefore, I believe only small companies would hire me, correct? At present, I am struggling whether to ask my family for money for another four years or take the risk of possible problems/risks to do I-140 again? I am already exhausted from getting this I-140 approved.

Arthur Lee Esq. answers:

Firstly, you should make sure not to leave your current position until your I-140 has been approved for more than 180 days if fearful that your employer will seek to revoke it. If you are from a country such as China or India which is backlogged on the visa bulletin, then a withdrawal of an approved I-140 petition by your current employer may still help you in giving you an earlier priority date (i.e. when your PERM was filed or your I-140 was filed if there was no PERM labor certification). If your I-140 is revoked due to fraud or willful misrepresentation, revocation of labor certification, or invalidation of labor certification, then you do not retain an old priority date. Again, this only truly helps you if you were born in a country with significant backlog, which I would assume that you are since you have not applied for a green card yet. A timely revocation within 180 days by an employer would disadvantage you when you need to be on H-1B status for over the 6 year maximin time limit.
In the case that you found a new job, you would need to redo the labor certification process—meaning filing a prevailing wage determination, testing the labor market, and filing ETA 9089, then filing another I-140. The good news is you would likely be eligible to keep your old priority date. However, this process would likely take another 2 years to get another approved form I-140 (with I-140 premium processing) with your new position. Then, you may file an I-485 application once your retained priority date becomes current. Typically, an adjudication on an employment based I-485 will take approximately 1 year.
I note that the labor certification steps may be skipped if you have an approved I-140 (or pending I-140 that is ultimately approved in the EB-1, 2, or 3 categories), and you have a properly filed I-485 application pending with USCIS for 180+ days. In that case, you may “port” your I-140 petition to a job in the same or similar job classification. But in your case, porting is not available as you have not filed an I-485 yet.
In USCIS’ eyes, there are not. Your job position would need to make sense in terms of the company’s needs, the company would need to show the ability to pay you the stated fulltime salary as promised in the labor certification application, and you would need to be a full-time salaried W-2 employee upon receiving the green card.
However, due to the nature of many construction jobs, there are some things that you and your potential employer need to look out for. Some jobs require licensure by the state and local government. For instance, if you are working as an engineer (mechanical, civil, etc.), you may need an engineering license unless you plan to work under the supervision of a licensed engineer; architects, electricians, and general contracted construction workers generally need licenses too in many jurisdictions. Therefore your employer must review the relevant licensure requirements in your jurisdiction to ensure that you are qualified for your proffered green card position. Also, PERM recruitment for construction-related positions may involve notifying a labor union that a company is recruiting a foreign worker in a position. As such, the company and employee should determine whether a labor union covers the green card position and must post a notice of intent to employ a foreign worker with that union. Also, a construction-related position may require the foreign worker to travel to construction sites. In such a case, a notice of filing should be posted at the sites where the employee will perform work as well as internally using all in-house media according to normal internal procedures. Should travel be anticipated for areas outside the metropolitan statistical area of the primary worksite, additional recruitment may be required.
All companies have their own policies—some are willing to sponsor, some are not. Larger size companies may not be willing to include the language that you wish in their employment contracts. However, I do note that it may be more difficult for a small company to sponsor you as it would need to show financial viability to pay you a full-time DOL-approved salary upon your receipt of a green card. Also its human resources department (if it has one) may not have the knowledge or experience in immigration matters as a larger company.

2. Apply for EB-1A on your own, not necessary need an employment letter

A reader asks:

I am working in the United States, and I am looking for someone to help me apply EB-1A. The person must write an employment letter to prove my work, and I will not change the field and need to ask the company to sign. Is this necessary? Is it enough to prove my job by paystubs? Because I will not change my field, I could sign it myself correct? As I feel it has nothing to do with the company, I don’t want the company to know that I am filing the petition myself. Is this idea feasible?

Arthur Lee Esq. answers:
As a condition of eligibility for EB-1A status, you must be able to show that you will be working in the same field in the United States in which you have extraordinary ability and that you will provide benefit to the United States. The adjudicating officer will decide whether you have proven these points based upon the totality of the evidence. Since you are self-petitioning, there is no requirement for a signed letter from an employer. However, having such a letter would be good evidence to show that you will continue to work in your field of expertise and provide a benefit. If you would prefer not to get such a signed letter, you can provide other evidence showing that you will continue to be in your field of expertise after your EB-1A is approved including but not limited to: (1) a showing that you have recently been working in your field of expertise such as paystubs, current job letter, and letters from others who know your work (not necessarily from management) and can attest that you are continuing to work in your field of expertise; (2) any recent contributions you have made to your field of expertise showing a continued interest in the pursuit of the field; and/or (3) any other evidence you can think of that would show that you are committed to your field.

Article: OCTOBER VISA BULLETIN BRINGS MANY CHANGES TO EMPLOYMENT-BASED PREFERENCES

As published in the Immigration Daily on September 20, 2023

The October 2023 visa bulletin came out on September 15 bringing relief to many and frustration to others in the employment-based (EB) categories. Those in the family-based (FB) categories were mostly frustrated by the lack of movement. There were many positive advances along with a number of retreats in the Visa Office’s “final action dates” and “dates for filing” employment-based charts. The family-based (FB) categories had little or no movement at all in both charts. USCIS followed up with the positive news that it would follow the “dates for filing” chart for employment-based cases for the month, a big change as it last used that chart in March 2023. It continues to use the “dates for filing” chart for family-based cases.

The changes from the September visa bulletin were as follow:

Family-based (FB final action dates) Rest of the world (ROW) except for certain countries – F-2A for spouses and children under the age of 21 and unmarried of permanent residents advanced one year one month and one week to 2/8/19; Mexico F-2B for children over the age of 21 of LPR’s moved up five months to 1/1/02; Mexico F-3 for married children of US citizens advanced one month three weeks to 3/8/98; and India F-4 for siblings of US citizens moved forward three weeks to 10/8/05. FB dates for filing – Unchanged.

Employment-based (EB final action dates) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers jumped to “Current” from 8/1/23 for all countries except China (unchanged from 2/15/22) and India that advanced five years to 1/1/17. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one week to 7/8/22 for all countries except China (advanced two months three weeks to 10/1/19) and India that jumped up one year to 1/1/12. EB-3 ROW for skilled workers and professionals jumped one year seven months to 12/1/21 for all countries except China (advanced four months to 1/1/20) and India that jumped 3 years four months to 5/1/12. EB-3W ROW Other Workers moved up three months to 8/1/20 for all countries except China (advanced four months to 1/1/16) and India which jumped 3 years four months to 5/1/12. EB-4 ROW Certain Special Immigrants moved up three months to 1/1/19 while the component for Certain Religious Workers became unavailable due to unpassed legislation. EB-5 ROW for unreserved investors remained current for all countries except China (advanced three weeks to 10/1/15) and India that dropped one year seven months and three weeks to 12/15/18. EB-5 set-asides remained “Current” worldwide.

Employment-based (EB dates for filing) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained “Current” for all countries except China (advanced two months to 8/1/22 and India that moved backwards almost 3 years to 7/1/19. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one month to 1/1/23 for all countries except China (advanced two months three weeks to 1/1/20) and India that remained unchanged at 5/15/12. EB-3 ROW for skilled workers and professionals advanced three months to 2/1/23 for all countries except China (advanced 10 months to 9/1/20) and India that remained unchanged at 8/1/12. EB-3W ROW Other Workers moved up six months to 12/15/20 for all countries except China (advanced one year six months to 6/1/17) and India which remained unchanged at 8/1/12. EB-4 ROW Certain Special Immigrants moved up five months to 3/1/19 along with the same movement for its component, Certain Religious Workers. EB-5 ROW for unreserved investors remained current for all countries except China (advanced one year to 1/1/17) and India that catapulted two years four months and three weeks to 4/1/22. EB-5 set-asides remained “Current” worldwide.

With a fresh supply of numbers for the start of Fiscal Year (FY) 2024, it remains to be seen how much forward movement the Visa Office can allow in the coming months.

Article: ANOTHER CALL FOR “BACK TO THE FUTURE” CHANGE OF POLICY FOR H-1B CAP SELECTIONS BY JANUARY 2024

As published in the Immigration Daily on September 14, 2023

USCIS must come to the inevitable conclusion that its current H-1B selection system is inoperable and fatally flawed by fraud. It must then go back to its old system of requesting the submission of full petitions by April 1.

This writer called for the action in a May1, 2023, article “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’” after the extent of the chicanery was revealed by USCIS as the rate of selection approval plummeted for those playing by the rules. From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000 for the approximate 85,000 available numbers. Since then, petitioners have not been required to submit full petitions from which selections are made, the only current requirements being $10 per candidate and a small online form filled in by the sponsoring organization. Not surprisingly, cheating has been the name of the game as the FY-2023 number of registrations ballooned to an astounding 780,884.

USCIS then announced and ran a second selection process at the end of July, undoubtedly with an eye on the outrage of those shut out by the cheating, and to its credit selected 188,400 to fill the approximate 85,000 slots. But this is an unsustainable situation and the agency does not have the resources to investigate most of the fraud cases. With the closing of the second round of selections, USCIS sent an update on August 1, 2023, with strong warnings against people trying to game the system, but it revealed statistics that were simply staggering – 780,884 total registrations with eligible registrations being 758,994; eligible registrations for beneficiaries with no other registrations 350,103; and eligible registrations for beneficiaries with multiple eligible registrations 408,891. Besides attempting to scare off potential fraudsters, does anyone really believe that USCIS has the ability to investigate each selected multiple registration to see whether there are bona fide job openings by bona fide nonaffiliated organizations? Looking at the numbers provided by USCIS, only 21,890 registrations were found ineligible, and many of those were not deemed ineligible due to fraud, but for duplicates and other technical reasons.

USCIS is a cash-strapped organization that clearly does not have the resources to investigate each of the duplicate filings among the 188,400 selectees, nor for that matter, each of the non-selected among the 408,891 multiple registrations. A return to the old system would ensure that each submitted petition is bona fide because of the cost and effort required to put in full petitions. USCIS has until the beginning of the year if it decides to go back to the future since the time to submit petitions had traditionally been the first five business days of April and organizations will need time to put the paperwork together.

Q&A’s published on the World Journal Weekly on September 10, 2023: 1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US 2. Should I do an appeal or file a motion after my EB-1A was denied? 3. The duration of an H-1B visa depends on several factors

1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US

A reader asks:
I graduated in 2011 in China with a master’s degree, and I worked as a computer professional teacher in a university for the past 12 years. Recently, because of my children’s education, I have the idea of immigrating. The first thing I considered was to New Zealand or Canada. Basically, people must go there before they can get their status. I don’t want to resign now because my children are still little. Now a middleman recommended me to do NIW, and said that I could apply while in China, and I am not in a hurry to go overseas anyway. The current situation is that I have 7 papers, patents and software works which were of average quality, and served as referees for some national competitions. I feel that my qualifications are quite average. However, I talked to several China’s middleman, they all thought my qualifications are sufficient, but they did not mention any of the risk. I am very confused now, please help.

Arthur Lee, Esq. answers:
You might be eligible for an EB-2 NIW. The three criteria for demonstrating your eligibility for NIW are: (1) that your proposed endeavor has both substantial merit and national importance; (2) that you are well-positioned to advance this endeavor; and (3) that on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

That said, it is unclear what your proposed endeavor would be, and how it would be beneficial to the U.S. government. Assuming that your proposed endeavor meets the criteria, the second question needs to be addressed whether you are well-posotioned. Your Master’s degree (assuming this is in a field that is computer related), having 7 papers/patents/software, and being a computer science professor at a university would be considered. It would also be a good idea to have experts in your field write letters of recommendations describing your accomplishments in the field and how you are well-positioned to advance this field with your work in the United States to solidify your evidence on being “well-positioned.” NIW is on a case by case basis, so an adjudicating officer would need to find that on balance, your proposed endeavor has substantial merit and national importance—as such, your endeavor with computers must be worthwhile to the U.S. government. In your NIW filing, you must show that your endeavor is worthwhile in that it will help advance human knowledge, create jobs, advance the economy, or a field in the United States that the current administration values. The Biden administration through its policy memorandum encourages granting NIW where a foreign worker will advance the STEM (science technology engineering mathematics) fields. Some examples of endeavors that have been found worthwhile in published decisions include being a software developer of stock option valuation, and a software developer with a PhD in music technology applying computer technology to music-related areas for the interests of the U.S.

Also, an officer must decide whether on balance, it would be beneficial to the US to waive the job offer and labor certification requirements. This inquiry looks into factors such as whether you will be self-employed in a manner that does not adversely affect U.S. workers; will own a business that provides jobs for U.S. workers; your work will otherwise lead to job creation; your endeavor has potential to generate considerable revenue consistent with the economy; your endeavor will benefit the U.S. even if other U.S. workers are available; national interests in your contributions are sufficiently urgent (such as U.S. competitiveness in STEM fields); or if labor certification is impractical for your position. You may wish to consult with a qualified immigration attorney who will further advise you on your qualifications as an NIW applicant, and the risks associated with filing such an application.

2. Should I do an appeal or file a motion after my EB-1A was denied?

A reader asks:
I am in China. I submitted the EB-1A application in June last year and received a denial letter in April this year. I submitted a total of four categories and only approved two. What should I do next? Should I do an appeal or file a motion? What is the difference between these two?

Arthur Lee, Esq. answers:
The difference between an appeal and a motion is that a motion will be filed to the same authority that adjudicated your case previously. In your case, it would be the same USCIS service center that handled your EB-1A application. There are two types of motions: (1) motion to reopen would be a motion to the service center to consider new facts that were not present at the time of your original filing; (2) a motion to reconsider is a request to review its application of the law in its previous decision. Meanwhile, an administrative appeal asks a different branch of USCIS (in this case the Administrative Appeals Office (AAO) ) to review the field office’s decision. Just like a motion, an appeal must typically be filed within 30 calendar days of the issuance of denial. Unlike a motion, an appeal requests de novo review which means that the AAO looks at the record anew including all facts and applications of law and it may address new issues that were not raised or resolved in the lower agency’s decision. USCIS aims to adjudicate its motions within 90 days, and the AAO aims for 180 days. Whether to file an appeal or motion is up to you. Many attorneys opt for appeal. However, if you choose to file a motion note that you can still appeal to the AAO if your motion is denied or dismissed.

3. The duration of an H-1B visa depends on several factors

A reader asks:
I worked in the United States for more than three years before, and I came back to China this year. In early May, I applied for the first H-1B visa at the Shenyang Consulate. During the visa interview, I told the visa officer that I had been working at Qualcomm, and my work was in the sensitive direction of chip verification. I thought I would be background checked, to my surprise, I passed the interview and my passport was submitted. However, after getting the passport back, I found that the H-1B is only valid for 4 months. My I-797 is valid until July 2025. My passport doesn’t expire until 2025. I don’t understand why the H-1B is only given 4 months, shouldn’t it be a one-year H-1B?

Arthur Lee Esq. answers,
The duration of an H-1B visa depends on several factors including the specific circumstances of your case, the discretion of the consular officer, and any supporting documentation provided. Since you have a valid passport for 2 years, as well as valid H-1B status for 2 years, there is nothing on the reciprocity schedule for H-1Bs with China to show why you would be given such a short time. On H-1B reciprocity with China, you should be given 12 months or the period of validity of your H-1B petition, whichever is less. Since your passport and H-1B status are valid until 2025, it is surprising that you did not get a 1 year visa. It seems that reason for the shorter duration on your H-1B visa was the consular officer’s discretion, if not a mistake. Consular officers have the authority to determine the validity period of a visa based upon their assessment of the individual’s circumstances such as duration of job offer, petitioner’s compliance history, and other relevant information. While this is just speculation, perhaps the officer chose to give you an easier interview, but limit your ability to go in and out of the country without further questioning due to your work in a sensitive area in technology.

Q&A’s published on the World Journal Weekly on August 27, 2023: Arthur Lee, Esq. Article: Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications. Arthur Lee, Esq. Q&As: 1. The online query of PERM labor certification database is inaccurate 2. A showing of job applications in the United States is not normally required for an EB-1A petition.

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.