Year: 2023

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.

1. A question on prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined. 

A reader asks,
My prevailing salary level (PWD) is approved, but the company’s pay center has changed location. After waiting for 6 months, I finally got the PWD. I received an email from a lawyer today, saying that I can start advertising, and asked me to send him some information, including the latest pay slip. I sent it. I thought everything was just waiting, but after a few hours, a lawyer said that the entity name of my pay slip had changed, and I had to wait another 8 months for a new file. what do I do? I explained the reason, saying that it is not because the entity name has changed, but because the location of the pay center has changed, from the original IL to CA. This requires refile, but how do I know? I never paid attention to this, because the company has never changed or reorganized. However, I went to see the pay slip today, and it did change many times in the middle, as if it changed every few months. HR said this is normal. I would like to ask, I am now asking HR to change my pay center back to IL, and it has been kept in IL. Is it possible to continue to use the current PWD?I have been working remotely for more than a year since I was hired, because when I applied for PWD before, I asked whether to apply according to my home location, and the lawyer said no, I need to do it according to the company headquarters office. The entity name company at that time happened to belong to IL, so they used IL. I didn’t know the pay slip keeps changing. I asked HR, and he said that the Pay center is determined according to the company code of each month or each period. I’m remote, it doesn’t affect me. I still file taxes according to my current state. HR said that I can apply for my manager to help me fix it on the pay center of IL. The lawyer didn’t respond either. what to do?

Mr. Lee answers,
A prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined should generally be the prevailing wage of the headquarters metropolitan statistical area. It is not clear from your fact situation whether the name on the prevailing wage form is that of the headquarters office in Illinois or a separate entity in Illinois. If a separate entity like a professional employer organization (PEO), it may well be that the prevailing wage will have to be redone unless everyone agrees that that will be the sponsoring entity and all documents come from there. In that case, a change back to being paid by the pay center in Illinois might make the situation easier for USCIS to understand in the I-140 phase. However, if the PWD was done for that location, and under the company name and not the pay center, I fail to see what is wrong with it. Recruitment would then be conducted in the headquarters location. The payslip issue would looked at by USCIS in the next phase of your case, the I-140 petition, assuming that the labor certification is approved. If the company is using its various offices in different locations to issue payslips and W-2s, the company would have to provide an explanation concerning the relationship and how the company operates with reference to payment of its employees. If the company uses a PEO, a company explanation along with proof of its relationship with the PEO would be warranted. In that case, the company should also be the petitioning organization on the I-140 and not the company’s pay center nor PEO. Issues of who is the actual employer with rights to hire, pay, fire, supervise, or otherwise control your work may come into play along with requests by USCIS to document these points if the petitioner is one of the company branches or PEO. As this is a complicated issue, and you may not know all the facts, your company should work with its attorney to take the best course of action keeping you informed of its decisions.

2. J-2 dependent who has EAD approved is generally allowed to work in the U.S.

A reader asks,
I am in China and want to apply for J-1 or H-1B to work in the United States. My spouse will go with me. How can the spouse legally work? What are the options? Is there any way to exempt?

Mr. Lee answers,
The J-2 dependent of a J-1 visa holder is generally allowed to work in the United States upon application as long as the income is not being used to support the J-1 holder. The dependent would file an I-765 application for employment authorization at any time after arrival with USCIS paying the filing fee of $410 along with submitting requisite documentation (not onerous). The legend to place on the application for the category of work is C-5. H-4 dependents of H-1B visa holders find it more difficult to apply for work authorization as it can only be done when the H-1B holder is being sponsored for permanent immigration by an organization and has the I-140 petition approved (the step after obtaining a labor certification) or the H-1B holder has been approved for an extension of time past the normal allowable six year period of H-1B status as 365 days have elapsed since the filing of a labor certification application or I-140 petition. Please be aware (if you are not already) that J-1 visas for China nationals come almost exclusively with a two-year home residence requirement before the applicant is eligible for H-1B or L-1 (intracompany transferee) or permanent residence approval.

3. H-1B holders who already have H-1B visas in the passports would continue to travel in and out using the visas.

A reader asks,
I am working in the US and I am going back to China to visit my relatives. I heard that combo cards are issued separately now, so do I not have to worry about H-1B’s invalidation if I return to my home country?

Mr. Lee answers,
Combo cards combining I-131 Application for Travel Document advance parole and I-765 Application for Employment Authorization benefits in one card were discontinued by USCIS in April 2022. At this time, employment authorization is usually given faster than advance parole. Advance parole allows individuals free travel in and out of the US during the time that an I-485 adjustment of status application is pending. Without advance parole, most applicants are precluded from traveling. H-1B’s, however, are still allowed to travel during the adjustment of status phase without advance parole. Those who already have H-1B visas in the passports would continue to travel in and out using the visas. A point of decision arises for those without visas who wish to travel outside. Some fear that they may be denied H-1B visas while overseas, and so those would usually apply for advance parole and wait for it to be issued before safely leaving and returning to the US. A difficulty with advance parole at this time is that USCIS does not give these applications priority, and so advance paroles are usually approved between 6-12 months from the date of application. We note that the speed of adjudication is inconsistent as we recently had one approved within eight days of application while another pended 18 months. To discourage individuals from asking about their cases, USCIS has posted processing times of 14 months for the California Service Center, 11.5 for the National Benefits Center, 13.54 Nebraska, 16.54 Texas, and 7 for the Vermont Center.

1. RFE is Request for Further Evidence and NOID is Notice of Intent to Deny

I filed an NIW application and kept checking the status, but nothing changed. Yesterday, the lawyer told me and I was very nervous and sad when I received the RFE. I have never seen an RFE before, so I would like to ask some questions: firstly, how to judge whether the received RFE is not a NOID, only the request for evidence is written at the end of the attached table? On March 1, the date on which the lawyer received the RFE was February 23, but the status I checked online remained unchanged and it was still case received. Won’t the status of the RFE be updated online? The RFE was very long and questioned all three prongs. I provided information for each point, but it was considered insufficient proof. Does this mean that the probability of passing is not high?

Some people say that if it is RFE instead of NOID, that means that there is an intention to pass it, but what is the situation like this when every point is questioned? Finally, I would like to ask prong3-it is beneficial not to use the labor certificate. How should I argue? If the first two prongs can be proved, then this is no problem? The first two prongs felt that they didn’t buy my recommendation letters very much, saying that they couldn’t prove the connection with other entities. I don’t have a patent for my articles, and the recommendation letters are mainly from the bosses of the company. Outsiders will not know my specific work. Excuse me, if you want to issue a relatively independent recommendation letter, you may find a company customer or a professor in a related industry. What are they going to write? Is it okay to write from a resume?

Mr. Lee answers,
For the benefit of the readers, a national interest waiver (NIW) requires that the petitioner show that there is substantial merit and national importance to the proposed endeavor; that the petitioner is well placed to advance the endeavor; and that it would be beneficial to the United States to waive the labor certification requirement. To your specific situation, USCIS labels RFE’s (Request for Further Evidence) and NOID’s (Notice of Intent to Deny). If your attorney informed you that he or she received an RFE, you can well believe it as he or she is looking at it. (The attorney should email or send you a copy). Generally speaking, the online status system should register the RFE, but the system is inconsistent and sometimes does not as a system is only as good as the persons inputting information into the system. It is always better to have at least one of the prongs decided in your favor when you receive an RFE, but being questioned on all three does not necessarily mean that you will be denied if there is a strong response. The question of the third prong – whether it would be beneficial to the country to waive the labor certification requirement – would likely be resolved in your favor if you are adjudged favorably on the first two points. Entrepreneurs and those who are extremely good in their fields with deep knowledge and experience are not readily amenable to the labor certification process, which demands that petitioning organizations only ask for minimally qualified people. Besides the impracticality of a labor certification application, USCIS looks to see the benefit to the US from the petitioner’s contributions even if other US workers are also available, and whether the national interest in the person’s contribution is sufficiently urgent. In looking at recommendation letters, USCIS is looking for objective observers who can talk about you, your endeavor, and how it may benefit the country. Letters from people who know you like colleagues, your managers, and company customers may not be seen as objective. A professor in a related industry who knows of your work may be more persuasive. USCIS is also looking for original letters, not letters written from a resume. Letters that look like they are written by the same person are not well accepted. The best letters are thoughtful ones written by individuals talking extensively about your endeavor, how well-positioned you are to advance the endeavor, and if possible, explain how granting the waiver may outweigh the benefits of making you go through the labor certification requirements.

2. An applicant for a B1/B2 visa must disclose past immigrant visa information

I’m in China and I’m going to America. I would like to know, if I submit a US green card application, can I still apply for a B1/2 visa? For example, if I apply for a business trip, tourism, or meeting in the United States, what proof do I need to provide?

Mr. Lee answers,
An applicant for a B1/B2 visa is required to disclose in the DS-160 nonimmigrant visa application form whether he or she has applied for an immigrant visa or had an immigrant visa petition filed on his or her behalf. Upon such disclosure, the decision of whether to issue the visa will be in the discretion of the American consular officer. You should prepare such materials as proof of the purpose of your trip, ties and bonds with the home country such as ownership of real property, other assets, bank accounts, employment or schooling, etc. I note that it has been our experience that many consular officers take less notice of immigrant visa petitions where there is still a considerable time to elapse before the priority date becomes current.

Check the Processing Times of Your Case Online

A reader asks:

I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

Article: CSPA Vis-À-Vis USCIS Adjustment Chart

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

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

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

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

Q&As:
1. Different immigration offices have different processing times

A reader asks:
I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

2. A I-140 visa petition is a preliminary petition and is not an application for immigration itself

A reader asks:
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. One premium processing fee for one application

A reader asks:
I need to apply for I-140 immediately, but I am hesitating whether to expedite the process? I also want to apply for the extension of h1/h4. Some colleagues suggests that I try to submit 140+h1/h4 extension+h4EAD together. Of course I want to save money, and I want to save a premium process fee, otherwise I will have to submit two premium process fee for the two requests. Is this possible?

Mr. Lee answers,
Unfortunately, there is no bundling of applications for purposes of submitting only one premium processing fee. At this time, USCIS will expedite for $2500 an I-140 petition. It will also expedite H-1B petition for the same amount. The $2500 that you would be paying for the H-1B expedite does not include expediting the H-4 or H-4 EAD although those applications have sometimes benefited from the H-1B premium processing to be adjudicated in shorter time. I note that USCIS decoupled H-1B’s from H-4s, but as a result of litigation, is coupling them again. That means that petition and applications have a higher likelihood of being adjudicated together in the future.

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

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

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

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

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

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

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

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

3. Priority Date is Not Shareable

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

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

4. PERM Denied  May Apply for Reconsideration

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

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

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

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