1. An individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole
A reader asks:
Currently H-1B Extension has been Approved. The lawyer is preparing to submit I-485 this week, and plans to return home after having his fingerprints taken, which is expected to be at the end of November or early December. In the case of renewing a visa sticker in China, if you want to submit AP (double insurance) and leave the country before AP is approved, will the AP application be automatically canceled? It is said online that the AP’s pending departure will be canceled before approval, but will the AP’s pending departure be canceled if there is an H-1B?
Alan Lee answers:
The rules of advance parole are that an individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole. We recently heard of a situation in which an individual did just that – file for advance parole, leave the US prior to its approval, and on returning to the US with a subsequently approved advance parole, had the I-485 adjustment of status application denied. Thus, having an advance parole is not double insurance if leaving before its approval. If approved before you leave, then it may very well be your double insurance. In the situation of an individual with valid H-1B visa and valid advance parole, the choice is up to that individual as to which document to use to reenter the US. We have heard tales that Customs and Border Protection (CBP) officers may express a preference as to which one they will be willing to accept, but generally, the choice will be yours where you have two valid documents for entry.
2. A prevailing wage determination is required to begin the case
A reader asks,
I joined my current company in February 2022. Currently, companies require employees to work for one year before they can apply for a green card. Due to various reasons, I have delayed starting PWD until now. Now I have a few questions: 1. When is the salary of PWD determined based on the position? Is it the current job or the job when the company accepted me? I was promoted to Senior Researcher in August this year, so the two prevailing wages should be different. Are the YOE requirements on PERM calculated based on when you first joined the company? Previously, the company drew H-1B on a part-time basis. Although I have worked for two years, I do not have 2 years of experience. Will this affect PWD? Is it OK to get EVL before advertising? Is the PWD process not required?
Alan Lee Esq. answers,
Under PERM labor certification, a prevailing wage determination is required to begin the case to ensure that the employer will be paying prevailing wages for the offered position. The wage is based upon the position which is being offered in the labor certification application, not necessarily your current job. If you were promoted to senior researcher last year and the company is beginning your labor certification now, it should be sponsoring you for the job that it intends for you to take on permanently, and so should give the corresponding job description for the PWD determination. If experience is required, the company will also set the requirements there in terms of months or years. The requirements of course should ensure that you are eligible for your own labor certification in terms of education, experience, and special skills. In the labor certification application, the PWD is a required part of the process. In terms of obtaining an employment verification letter (EVL) before advertising, that is always a good idea, and an even better idea is to obtain one prior to sending in the PWD request.
3. It is not a necessity to contact USCIS to cancel the F-1 approval if you have an I-485 receipt
A reader asks,
My children are in college and their current status is H-4. Since I am about to turn 21, I submitted I-539 to USCIS in June to change status from H-4 to F-1. It was not approved in October, and I received an RFE saying I-20. If the start date has expired, the school will need to issue a new I-20, and you will also need to pay a student registration fee of 200 yuan. As a result, when the child was applying for a new I-20 with the school, we could submit the I-485, so after submitting the I-485 application, we no longer had to worry about the F-1 RFE. Currently, the I-485 receipt has been received, but the child’s F-1 has also been approved. We did not supplement the RFE and do not know why USCIS approved the F-1 in this case. After consulting with the school, the school said that the I-485 receipt can maintain legal status. So, do we need to contact USCIS to cancel F-1?
Alan Lee Esq. answers,
The school’s advice is correct that the I-485 receipt of your child will allow the child to remain in the US as you all await the decision on your I-485s. It is not a necessity to contact USCIS to cancel the F-1 approval, and in some ways, it may be best not to do anything to disturb that adjudication. Whether your child decides to continue going to school or not will not affect his adjustment of status. Kindly note that he is not allowed to work unless he receives employment permission from the school or in connection with an employment authorization application based upon the adjustment of status application.
4. EB-3 would typically take 3-5 years to complete
A reader asks:
I studied for a PhD in China and am now a postdoc in the United States, with a contract until the end of next year. In May this year, I submitted NIW and it was approved. The boss of my laboratory has no grants recently, and he is not sure whether the contract can be renewed at the end of next year. I may need to return to China to wait for the appointment. I am a STEM major and have a 2-year residency requirement. My husband has a bachelor’s degree in China, and the American employer may want to apply for EB-3 for him in order to retain him. We are hesitant now and don’t know whether to let his boss do it for him. If so, what issues need to be paid attention to and considered?
Alan Lee Esq. answers,
Questions for you primarily depend upon whether you are able to obtain a waiver of the two-year home residence requirement, whether you will be able to keep up your activities in the NIW field, and what effect serving out the two-year residence in China if unable to obtain a waiver may have on your case. I assume that your NIW petition was a self petition, and not one in which the US employer was listed as the petitioner. In such former circumstance, you should continue to work in the field in which you received the I-140 approval and be ready to show a level of activity in your field at interview if you must return to China for two years.
With reference to your husband’s proposed EB-3 employment opportunity, that type of case would typically take 3-5 years to complete assuming no complications given the present slow speed of visa processing in that category for China born. If he is under J-2 dependent status, he will also have the same two-year home residence requirement. If so, and he has to serve the two-year residence requirement in China, he would be allowed to immigrate at the end as long as the employer is still willing to support his case. His EB-3 case would involve a PERM labor certification, I-140 petition, and either adjustment of status (if not subject to the two-year requirement or having a waiver of it) or consular processing.
An EB-3 case for your husband gives you and your husband two opportunities to immigrate to the US, although it may be longer timewise than yours. However, the time difference may not be that much due to due to employment category availability dates. In the month of April 2024, visa bulletin final action dates under which adjustment of status or consular processing cases can be finally approved for China born are up to February 1, 2020 for EB-2 and September 1, 2020 for EB-3.