Month: May 2024

If you self-petition an I-140 EB-1A petition, you may designate your planned state of residence in the United States as your principal workplace

A reader asks:
Apply for EB-1A in mainland China, DIY the materials myself, and submit I-140 and I-907 at the same time. Two questions to ask: (1) There are 2 shipping addresses listed on the USCIS website. Based on the choice of work address, it is currently unclear which State I will eventually go to work in when applying in China. Can I choose the most likely one? Or do you have any special requirements? (2) I need my friend in the US to help me write the check to pay the fee. I send the materials to my friend, and then after my friend adds a check, is it okay to send them to the above address? I also have my domestic addresses in my domestic materials.

Arthur Lee Esq answers:
If you self-petition an I-140 EB-1A petition, you may designate your planned state of residence in the United States as your principal workplace. If you are not sure, then you may designate your most likely state of residence in the US. Then check the 2 shipping addresses and pick the one corresponding to your proposed state of residence (which you will also list as your workplace). At the time of your consular interview, it would of course be ideal if your address/worksite is the same as the one proposed on your I-140 petition. But even if it is not, it should not affect your application since EB-1A does not have a worksite location restriction. The consular officer may ensure that you are still planning to do the work that you stated in your I-140, and if need be, amend your worksite in the system.

On your second question, you can have your friend pay your filing fee and send the package with check to the appropriate service center for your worksite. Their domestic address is irrelevant in this case. The determining factor of where the check or payment should be sent is your proposed worksite address.

1. If USCIS made a mistake on the SOC code, your best solution would be to directly contact USCIS

A reader asks:
I was about to file I-485 when I discovered the I-140 approval notice from a few years ago. But the SOC code is wrong, it should be 151132, but the notice says 111132. I don’t know if USCIS made a mistake or if the law firm applied for it and filled in 111132 incorrectly, this SOC code does not exist at all. What should I do next? If USCIS made a mistake, can I apply for I-485 and I-140 correction at the same time? If an error occurs when applying to a law firm, how should this be handled?  

Arthur Lee Esq. answers,
It is largely up to you and your law firm (if you are represented) whether to move forward with the I-485 filing at this time if your priority date is current. The error appears to be minor. However, if you wish to make the correction before filing, we suggest the following: If USCIS made a mistake on the SOC code, your best solution would be to directly contact (or have your attorney directly contact) USCIS to have them correct the mistake on your I-140 approval, possibly by placing an erequest—by going online to https://egov.uscis.gov/e-request/Intro.do, clicking the option “Typographical Error” then filling out the form fields with your information. Then where it asks “what has the typographical error?” you respond with “notice.” Where it states: “please describe the error” you respond: “On the I-140 approval *your receipt number*, the SOC code was mistakenly entered as 111132.” On “please enter the correction” you may state: “The SOC code should be entered as 151132. I understand that this approval was issued a few years ago, but neither me nor my attorney caught this mistake. If you can correct this typo that would be helpful and greatly appreciated.” Please note that this may or may not work due to the fact that your approval was issued a few years ago, and is not too recent. You could also have your attorney directly call (or you could directly call) USCIS Contact Center to explain the mistake and have them change it—the phone number is 18003755283. Please note that it is not a guarantee that this correction would come within the timeline that you want to file your I-485. If the correction does not come on time, you or your attorney (if represented) could file your I-485 with a detailed explanation on the error on the I-140 approval supplementing this with some of the pertinent evidence on the I-140, as well as a copy of your I-140 form that was submitted in obtaining the approval. Also, many I-140 approvals nowadays list not only the SOC code, but the occupational title on the approval. So if the SOC code does not match your job, but the occupational title does, this error may be relatively easy to explain and get corrected. It may also help that the SOC code listed on your approval is not even a valid code.

2. Can EB category I-485 use 245K to exempt family members from being out of status for 180 days?

A reader asks:
The work visa extension has not yet been approved. My wife’s I-485 has been submitted and the schedule is current. If the extension is approved, it will definitely be no problem, but if it is not approved, I don’t know what will happen? The wife is not a citizen. I saw a saying that EB category I-485 can use 245K to exempt family members from being out of status for 180 days. I wonder if there are any risks.

Arthur Lee Esq answers:
I answer this question under the assumptions that your wife is the principal applicant and that her I-485 application is employment-based. I also assume that you will also file an I-485 based upon your wife’s employment. In such a case, INA 245(k) applies assuming that she came into the United States on a visa rather than parole. Normally, a noncitizen is ineligible to adjust status if he/she engages in unauthorized employment, violates the terms of his/her nonimmigrant status, or fails to maintain status. However, under INA 245(k), an employment-based I-485 applicant (including dependent immediate relatives of the principal applicant who also submit an I-485) who engages in authorized employment or fails to maintain lawful status or otherwise violates the terms/conditions of his or her nonimmigrant visa following his/her most recent admission is exempted from ineligibility to adjust status as long as the aggregate period of the violations is 180 days or less. In your case, you can work for up to 240 days while your extension is pending. If your case is approved, of course as you mentioned there is no issue. If your extension is denied, the days that you work prior to the denial (while your case was pending) are authorized, but the days that you work after your date of denial will be unauthorized. Another issue in case of denial is that the number of days of unauthorized stay prior to filing your I-485 application (i.e. the number of days between your last day of authorized stay and your I-485 filing) will be counted toward that 180 for 245(k) purposes. You should ensure that the total number of days worked unauthorized + days that you did not maintain legal status does not exceed 180 days at the time you file your I-485. Your stay in the United States after I-485 filing are quasi-legal (and typically recognized as authorized) while your I-485 case is pending, but such does not apply to employment unless it is authorized. 

1. During your green card interview, it is a good idea to be forthcoming on the facts

A reader asks:
I am currently preparing the I-485, but there are some inconsistencies in my work experience in my past visa applications. I would like to get some opinions or suggestions. When I applied for a tourist visa in 2010, I filled in the name of my father’s company as my employer on the DS160 application form because I was actually working for an American company at that time. However, since this American company had no branches in China, it did not help me pay my pension insurance. Then I affiliated with my father’s company to pay my pension insurance. Later when I applied for an L-1 visa, I filled in that American company as my employer. Since then, whether it is H-1B visa, PERM or I-140 application, I have always truthfully filled in this American company as my work experience. Now I’m worried that USCIS will find this inconsistency when they review my I-485 petition. I would like to ask how to respond to this situation.

Arthur Lee Esq. answers:
In this answer, I will operate under the assumption that you answered Question #71 on the I-485 application: “Have you ever lied about, concealed, or misrepresented any information on an application or petition to obtain a visa, other documentation required for entry into the United States, admission to the United States, or any other kind of immigration benefit?” with the answer “no.” In such a case, a USCIS adjudicator may choose to overlook it as it was long ago, and you have been forthcoming with your applications and petitions ever since then, and have not had any issues to this date. Also, the adjudicator may think that such a misrepresentation was irrelevant to the visa issuance if the true facts had been known. On the other hand, a more stringent adjudicator may flag your misrepresentation as an issue—he/she may believe that you made a material misrepresentation in not listing an American company as your employer back in 2010 to increase your chances of being approved for a tourist visa. If asked about this during your green card interview, it is a good idea to be forthcoming on the facts. Some favorable factors to you may be that this misrepresentation was from over a decade ago; that you have been forthcoming on all of your applications since then; that ever since then you have dutifully maintained status and paid your taxes; that you left the United States before the conclusion of your B2 expiration during the trip in 2010; and that you are (presumably) otherwise approvable as a permanent resident. You may mention that you placed your father’s company down as your employer as that company paid your pension insurance, but the officer will likely find that irrelevant since you did not actually work at the company. By being forthcoming about the inconsistency here, the officer may decide to be lenient, and approve your I-485 anyway- especially if this inconsistency is the only red flag in your application, and if you come across as a well-mannered person of good moral character.

2. If you take a position in the Thousand Talents Program, you assume the risk of jeopardizing your immigrant visa application 

A reader asks:
I joined a company after graduating with a PhD in biochemistry in the United States. After using up my OPT, I transferred to O1. I have been unsuccessful in applying for H-1B for many years and was recently laid off. Although I had expected it and had been looking for a new home for a long time, biotech has started to lay off a large number of employees since last year. It is difficult to find companies willing to run O1 in the capital market, and I am afraid that I will have to return to China as a last resort. Fortunately, NIW can come back after a few years of waiting. Now that I’m considering returning to China to work for a few years anyway, why not try to apply for a domestic talent introduction program? However, due to previous investigation of the Thousand Talents Program, I feel that these talent introduction programs are a bit sensitive, and I am worried it will affect the green card. I’m here to ask a lawyer for advice.

Arthur Lee Esq answers:
I would not generally recommend working for the Thousand Talents Program during your time waiting for your priority date to become current with respect to China EB-2 (I assume that your I-140 EB-2 NIW petition has been approved). While this may end up being a non-factor in your immigrant visa application when your priority date becomes current, it could very well jeopardize your application as export administration regulations are a point of emphasis for the US government now, especially toward Chinese nationals. While the Thousand Talents Program may be a legitimate program in China to encourage innovation in science and technology in China, law enforcement agencies in the U.S. and several other countries have raised concerns about the program as a vector for intellectual property theft and espionage. In your immigrant visa application, you will have to disclose that you worked for the Thousand Talents Program. This may invite significant scrutiny into your application. During your interview, you will need to make clear that while you worked in the Thousand Talents Program, you never committed IP theft or improperly gave trade secrets of U.S. organizations to China. The officer may ask you pointed questions regarding the work that you did with the Thousand Talents Program, and whether you have utilized knowledge attained in the U.S. (and the nature of the knowledge) to perform your tasks or worse, provided training based upon your knowledge gained in the U.S. Therefore, while the Thousand Talents Program may be your highest paying and most prestigious employment option while waiting in China, you assume the risk of jeopardizing your immigrant visa application if you take a position in such a program.

3. Is it considered fraud if submitting an I-485 application immediately after entering the country with a nonimmigrant visa?

A reader asks:
The main applicant F1 OPT recently submitted I-485 in the US, and his spouse in in China and plans to enter the country with an F2 visa in the near future. Please tell me does F2 have to wait 90 days after entering the country before submitting the I-485 application? It is said that submitting an I-485 application immediately after entering the country with a nonimmigrant visa is considered fraud. Does this also apply to F2? She had stayed in the US for several years on an F2 visa. She returned to China last year for business, and now she wants to come back and submit I-485.

Arthur Lee Esq. answers:
The question when filing the I-485 with respect to the previous entry is one of intent. Upon reviewing the entry preceding the I-485 application, a DHS adjudicator may seek to determine whether the applicant misrepresented his or her intent at the consulate when he or she applied for the nonimmigrant visa or upon entering the U.S. While the 90 day rule is no longer a rule but more of a guideline at this point, if somebody does something in the United States within the first 90 days of entry that contradicts the conditions of the visa, then a strict adjudicator may flag the case. In your case, if your spouse enters under an F2 visa, which has a nonimmigrant intent requirement, and files the I-485 shortly after entry, he or she may question your spouse’s original intent when entering the United States. It may be possible to successfully address such concerns and still be approved for permanent residence but be aware that her case could become problematic.