Month: March 2024

1. USCIS would not expedite work authorization unless one of the five conditions exists

A reader asks:
I submitted I-485 for EB-1B in June. The main applicant has a work visa, which is still valid for more than two years. I would like to ask if it is possible for the secondary card to pass the expedited comb due to financial loss? Because if you review it carefully, you will probably find that the main applicant has a job. It is speculated that it may be helpful to have two children, which will make the burden heavier.

Alan Lee, Esq. answers:
It does not sound like financial hardship where your spouse already has a job and a work visa even if you have two children and a heavier burden. So that is not in my opinion a good reason to expedite your green card case. In addition, a dependent green card cannot be approved before that of the principal applicant. In your situation, it would appear that you can apply for employment authorization based upon the I-485 adjustment of status filing. If your husband is holding H-1B status, you are eligible to apply also for employment authorization as the spouse of a H-1B holder who has an approved I-140 petition. In both situations, USCIS would not expedite work authorization unless one of the following conditions exists:

• Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
• Emergencies and urgent humanitarian reasons;
• Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
• U.S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
• Clear USCIS error.

2. EB-1A denied, maybe wait until you have developed new circumstances that may strengthen your case before submitting a new petition 

A reader asks:
I submitted EB-1A to TSC in July and responded to the request further evidence in August. I just learned that my EB-1A was denied. My attorney told me that the officer who adjudicated my case had an approval rate of 14% in 2023, so it was not surprising that my case was denied. However, my attorney suggested me to wait for 3 to 4 months before refiling to avoid the same officer to adjudicate my case again.

Now I have two choices: 1. Wait for 4 months before refiling to TSC; 2. Submit it now to NSC. I inquired my lawyer for advice and he told me he had no opinion and that I should make a decision on my own decisio. He just told me that my denial will not affect the next application, and whether a case is approved depends largely on the adjudicating officer.

Therefore, I feel like I should submit many applications as if you submit many application, even if I get denied many times, I just need to be lucky enough to be approved once. Please tell me, should I wait for another 4 months to refile again to TSC, or should I refile to NSC immediately?

Alan Lee, Esq. answers:
No one is certain of approval when submitting EB-1A petitions and how an officer may view the evidence presented of extraordinary ability short of a Nobel prize or Oscar (and we have heard of USCIS giving such a petition a difficult time even when the petitioner did have an Oscar in one of the nonmajor categories). I note that the I-140 petition requests information on prior filings which means that an officer has the opportunity to look over your past filing. Unless you truly believe that you had a very strong case that was wrongly rejected, our opinion is that you may wish to wait until you have developed new circumstances that may strengthen your case before submitting a new petition to USCIS.

3. Whether to move forward now with NIW petition

A reader asks:
My wife and I just came to the United States. We are currently studying for a Ph.D. and have some papers and citations. I have consulted with a lawyer and found out that I can apply for NIW under current conditions. I don’t know whether to apply as soon as possible or wait until I graduate soon? There are several tangled points: 1. According to the current queuing speed of NIW, will I not be able to get in line after completing my PhD? 2. The visa is for 5 years. If I apply for I-140, is there any risk in returning to my country? My wife is F-2, does it have no impact on her return to China?

Alan Lee, Esq. answers,
NIW is under the EB-2 category and the current date of availability (when an immigrant visa or adjustment of status can be granted for those who have approved NIW petitions with USCIS) is for petitions filed earlier than January 1, 2020. So there is a significant waiting time after submission of your case. That being said, having a PhD may strengthen the NIW petition, especially if the PhD is in the STEM sciences. So you should take these factors into account in deciding whether to move forward now with your NIW petition. The other factor that you ask about is the risk of traveling back to the home country, China, during the process as you have a visa for five years. Generally speaking, persons with visas do not have to apply for new ones at US consulates or embassies and do not experience problems coming back into the US. That being said, you may wish to keep abreast of developments involving Chinese students on PhD degree programs involving research, some of whom have been experiencing difficulties with Customs and Border Protection officers on reentering the country. That may apply more to you than to your wife, and I do not expect that that would be much of an issue if your wife is traveling alone.

4. The rescheduling of biometrics should not greatly affect the speed of your processing

A reader asks:
I estimate that I can pass form BROW and submit I-485 in October. However, due to an emergency at home, I plan to return to my country after submitting the I-485. The reserved H-1B has been checked, and it is very likely that I will not be able to take fingerprints in time, so I will most likely need to reschedule. My PD is September 12, 2022. ROW’s form A is not current yet. Will doing this cause it to turn green slowly?

Mr. Lee answers:
USCIS cannot approve an employment based I-485 until the priority date becomes current. Even then, USCIS has its own backlog processing time even when the date becomes current as it does not have enough hands to process all cases when they become current. So the rescheduling of biometrics should not greatly affect the speed of your processing even though the agency in our experience does not continue processing cases and their related applications until biometrics are completed. In the past, requesting rescheduling could sometimes result in cases being denied as USCIS officers did not coordinate the request for rescheduling with the application. That has hopefully been largely resolved by the agency’s recent update to rescheduling wherein applicants are invited to make their own online rescheduling requests to USCIS through their existing online account or by creating an online account. Good reasons for requesting a rescheduling as per the USCIS policy manual are:

• Illness, medical appointment, or hospitalization;
• Previously planned travel;
• Significant life events such as a wedding, funeral, or graduation ceremony;
• Inability to obtain transportation to the appointment location;
• Inability to obtain leave from employment or caregiver responsibilities; and
• Late delivered or undelivered biometric services appointment notice.

1. If you add the skill set yourself to an already-signed letter , then this is fraud, your application may be denied, and may face criminal penalties.

A reader asks:
Currently, I am still in the PWD stage, and I discovered that my former company missed a whole Skills set section in the Experience letter. The lawyer said it must be exactly the same as the template details and skills he provided. The troublesome thing is that the HR of my former company is very annoying and has poor professional skills. He did not write according to the template provided by my lawyer at all, and he has not yet sent me an experience letter. If I add this skills set myself, will the Immigration Bureau treat it as fraud? Will it result in an RFE for I-140?

Arthur Lee Esq. answers,
I will note that each company or attorney writes their prior experience letters on behalf of employment-based green card applicants for former employees differently. That being said, the reason that these letters is written is so that the green card applicant has evidence backing their claims of being qualified for an employment position used in a green card application. For example, if a petitioning employer’s Software Developer position requires “Bachelor’s degree in Computer Science + 2 years as a software developer including use of Python and Ruby on Rails,” then the permanent resident applicant employee must provide evidence that he/she has the Bachelor’s degree in Computer Science, as well as the 2 years of experience as a software developer including the use of the two aforementioned technologies. So in order for it to be useful, a prior experience verification letter by a former employer should mention that the applicant had worked as a Software Developer for 2 years full-time (list dates), and state duties/responsibilities that clearly show that the applicant had experience using Python and Ruby on Rails while on the job.

In the case of the HR of your former company, you or your attorney may draft the letter including your responsibilities and skills so as to clearly show that you acquired some of the skills and experience qualifying you for your green card position at this previous position. If you or the attorney drafts the letter, and then the HR department signs it, then that will work for USCIS since your previous company was willing to attest to your experience. If you add the skill set yourself to an already-signed letter that they did not attest to, then this is fraud and your application may be denied, and in addition you may face criminal penalties. If USCIS doubts the authenticity of the letter, it may issue an RFE asking you to obtain further verification from the company, and make further showings that you are indeed qualified for the green card position.

If your former employer is unwilling to sign off on a letter verifying your experience, you should work with them to see what they are willing to attest to (i.e.—are they willing to attest to your dates of employment and your title, but not your specific job duties? Or merely willing to attest just to your dates of employment, as sometimes HR departments are only willing to do?) If you are unable to obtain a signed letter from your previous employer, or have a signed letter that only verifies portions of what is needed to meet your requirements, you may have others (such as a coworker, peer, or anyone else who can attest to your employment) write letters verifying your experience, stating their relationship to you and how they know that you had the experience. Additionally, you may provide old work samples if any to serve as further evidence of that experience. You may also sign an affidavit yourself that you were employed at the former employer, what position you had, for how long, and what specific responsibilities you had and skills you acquired. However, the likelihood of an RFE increases if you are unable to submit a signed letter verifying your experience in its entirety from your previous employer.

2. A J-1 requirement is an intent to return home at the end of the J-1 stay

A reader asks:
After I graduated with a Ph.D. in the United States, I used OPT to work in the United States for two years. Later, I left the United States due to the epidemic and worked in Europe. I recently got a postdoctoral offer from an American university and applied for an American J-1 visa in Europe. I applied for NIW overseas earlier this year and my attorney filed Form I-140 last week. The current status is that it has been received and the receipt number has been obtained. However, the DS-160 form for my J-1 visa has not been submitted yet, and I am very anxious now. If I apply for J-1 again, will it be rejected instantly due to my immigration tendency? Is it not safe to apply for J-1 and it is better to apply for H-1B or B-1 instead?

Arthur Lee Esq. answers:
While it is not certain that your J-1 will be denied, your immigrant intent with your filed I-140 may be hard to overcome in your J-1 application since, as you know, a J-1 requirement is an intent to return home at the end of the J-1 stay. You must overcome the evidence of immigrant intent by demonstrating that you plan to return home upon the completion of your J-1. This can be done by showing your ties to your country of residence such as a deed or lease, family ties, employment ties, a return ticket, and anything else that would demonstrate that you intend to return home after the expiry of your J-1. However, it is ultimately up to the discretion of an officer as to whether to grant the J-1 visa and believe your intent to return home, and a filed I-140 is often challenging to overcome when it comes to demonstrating nonimmigrant intent. Also, with a J-1 visa, you should also check whether you will be subject to any 2-year residency requirement. A 2 year residency requirement may delay your ability to take up permanent residence in the United States even after your priority date becomes current. In applying for a B-1 visa, you would face the same challenges in terms of proving nonimmigrant intent. There is not much more benefit in trying to apply for a B-1 than a J-1. If you are eligible for an H-1B either as a cap-exempt applicant or as somebody who wins the cap lottery, the H-1B visa would be a good option for you as it is a dual intent visa where your NIW application will not pose a problem.

3. The general rule of thumb with the Department of State is that if you cannot obtain a required document, you must submit a detailed written explanation

A reader asks:
My parents applied for a green card overseas and after filling out the parent information DS-260 form online, it showed that in addition to my parents’ birth certificate, my birth certificate, and my parents’ marriage notarization, they also needed my marriage certificate. My original marriage certificate is no longer available, only a copy. Will my application be rejected if I don’t have the original documents during the parents’ interview? Because it is shown above that all uploaded electronic versions need to be provided with notarized originals during the interview.

Arthur Lee Esq. answers:
While your marriage certificate would not seem to be that important of a document in your parents’ cases to require the original document, the general rule of thumb with the Department of State is that if you cannot obtain a required document, you must submit a detailed written explanation to the consulate as to why this document cannot be obtained. If you were married in the US, you should be able to obtain a certified copy of this marriage certificate through contacting the city or state clerk of the place you were married. If you were married in China, your parents can try to go to the appropriate government agency there to obtain your original notarial marriage certificate. This would typically be the local marriage registration office of the local civil affairs bureau of the jurisdiction where the marriage took place. Otherwise, your parents can go to the interview armed with a notarized detailed explanation by you as to why you could not obtain the original marriage certificate, and any further evidence you can provide such as your correspondences with the appropriate agency for the marriage certificate. The interviewing officer may grant the immigrant visas for your parents at his/her discretion even without the marriage certificate, or he/she may determine that your parents should obtain your marriage certificate and give a denial for lack of documents which can be overcome when your parents submit the marriage certificate or give further evidence why the original is not available.

1. EB-1 main applicant in the US under O-3 can submit I-485 once the I-140 priority date is current

I am in China, and my EB-1A PD is in April 2023, but my child will graduate junior high school in another year. I want my child to go to a public high school in the US as early as possible, but the current schedule predicts that it will be difficult to land within 2 years, which will delay my child’s high school enrollment. It is inconvenient for the EB-1A main applicant to apply, but the conditions for the O-1 spouse are similar to those of the main applicant. Can my spouse apply for O-1, and my children and I apply for O-3? At that time, while the main applicant is waiting for the I-140 current, can he submit the I-485 in China as an O-3?

Arthur Lee, Esq. answers,
As long as your wife meets the eligibility requirements of O-1 on her own (not through your accomplishments as a dependent), she can apply for O-1 status with you and your children as O-3 dependents. Please note that the eligibility conditions of the O-1 spouse are not similar to those as the main applicant. The O-1 applicant needs to independently establish eligibility (e.g. extraordinary ability in the sciences, education, business, athletics, arts or extraordinary achievement in the motion picture or TV industry)—the spouse applicant needs to show a bona fide marriage to the principal O-1 applicant. So unless your wife can demonstrate her own eligibility for O-1 status, your plan would not work. If she can demonstrate that she has extraordinary ability in one of the above fields and meets all other criteria for O-1, then she can be the O-1 principal, and you and your children can be O-3 dependents. If the O-1/O-3 petition is successful, then your wife will be admitted to the United States to work with her petitioning employer or agent under the employment conditions stated in the O-1 petition. Then you and your children will be admitted as O-3 dependents. As an O-3 dependent, you will not have work authorization, but your children will be allowed to enroll in school. Please note that you would not be in O-3 status until you arrived in the United States—upon your wife’s O-1 approval, you would be eligible to enter the United States and “activate” your O-3 status. While you are in the United States under O-3, you can submit your I-485 application once your I-140 priority date is current. If you are still in China, you can wait until your priority date is current and then apply for an immigrant visa via Form DS-260. But an I-485 is reserved for those who are already in the United States.

2. To verify the applicant’s experience, the Immigration Bureau can call the previous employer

Will the Immigration Bureau really send or call the former company for verification? If there is a small discrepancy in the employment verification letter, will it result in an I-140 audit? Is this used when applying for I-140? Or is it when PERM advertises? If my former employer does not add skills set to me, is it necessary to file a lawsuit?

Arthur Lee Esq. answers,
It is possible that USCIS calls your former employer who writes you a prior experience affidavit to truly verify your experience, especially if it has reason to doubt the legitimacy of the affidavit. If there is a small discrepancy in your letter, USCIS may either call the company to ensure that you acquired the skills and remained in the stated position for the time that the letter attests—in this case, USCIS may also ask the company how they know what they are attesting to in the letter. It may also issue a request for further evidence (not an audit) offering you an opportunity to explain the discrepancies and clarify other issues in your I-140 case. The employment verification letter is indeed used when you are filing an I-140, not when the PERM ETA 9089 is submitted. You would not win any lawsuit against your former company for not adding a skills set for you. Whether they are willing to attest to your particular skills, responsibilities, titles or dates of employment is entirely up to your former company.

3. It is more advantageous to submit NIW after obtaining a PhD

My conditions are not very favorable. I have a master’s degree from the United States and am currently studying for a PhD. I am considering whether to apply for a green card and when to apply, so I contacted several law firms, but after seeing the responses from the law firms, I am now hesitant whether to do NIW after the PhD graduation article is sent out, or to do it now. Core contradiction: Apply again when you have a new paper after PhD graduation vs. apply now?

Arthur Lee Esq. answers,
The answer to this really depends on how much evidence you currently possess that you are well-positioned to advance your field of endeavor, that your field of endeavor has substantial merit and national importance, and that on balance, it would be beneficial to the United States to waive the requirements of a job offer. While I cannot speak to whether your proposed endeavor has substantial merit/national importance as you do not specify what your Master’s and PhD degrees are in, and what type of work you are proposing to do, whether you have a PhD when you apply will factor into the second and third prongs (that you are well-positioned to advance your field of endeavor, and on balance, it would be beneficial to waive the requirements of a job offer). In adjudicating whether you are well-positioned, USCIS typically considers evidence such as degrees, certificates, or licenses in the field; your patents, trademarks, or copyright; letters from experts in your field describing your past achievements; published articles or media reports about your achievements or current work; citation history of your works; evidence that you influenced your field of endeavor; correspondence from prospective or potential employers and customers; evidence that you have attained investment from U.S. investors such as venture capitalists; contracts, agreements, or licenses showing potential impact of proposed endeavor; evidence of receiving awards and grants for your work in your field of endeavor; and evidence showing how your work is being used by others. If you have a plethora of the above evidence to meet the second prong, you might be able to submit an NIW application with confidence without finishing your PhD study and dissertation. However, if your evidence is more limited, it would be a good idea to secure the PhD and release your PhD graduation article before submitting an NIW case as that would further demonstrate that you are well-positioned to advance your field of endeavor. Your PhD completion may also be favorable in the adjudication of the third prong (on balance, it would be beneficial to waive the job offer requirement) since having a PhD may enhance the potential benefits to the US from your contributions, even if other U.S. workers were available. However, you should make this evaluation of whether you want to submit your NIW application before or after your PhD completion based upon the balance of the remainder of your evidence, and the overall benefits/risks of filing earlier rather than later for your particular situation.