Month: September 2024

1. If the consular officer or USCIS finds you improperly shared technical knowledge, it may be a ground for denial of your visa or green card. 

A reader asks:
Recently, a domestic headhunter and a friend who is starting a business contacted me and suggested that I apply for a national or provincial talent program. If approved, it will be 500,000 RMB per year, and a total of 1.5 million RMB for 3 years. I would like to ask, if applying for such a program will affect the future green card 485 change of status?

Arthur Lee, Esq. answers,
If you take up a position with a national/provincial talent program, your future green card application and your application for a visa at the consulate may face tougher scrutiny given the political climate between the US and China at this time. The US government has been cracking down on foreign talent recruitment programs, which it believes are a mechanism used by foreign countries such as China to bring outside knowledge and innovation back to their countries, including stealing trade secrets, breaking export control laws, or violating conflict-of-interest policies to do so. The FBI notes that while various countries use talent plans, China is the most prolific sponsor of these programs. Therefore, if you work at a talent program, your applications to come to the US on a visa, or adjust status to I-485 may be subject to further investigation into the questions of whether you have improperly exported technical knowledge and trade secrets to China. You will need to be prepared to answer questions about whether you have ever utilized or shared knowledge regarding sensitive US technology secrets and innovations during your time working at the talent program. If the consular officer or USCIS finds that you more likely than not have improperly shared knowledge with the talent program, that may be a ground for denial of your visa or green card application.

2. NVC may choose to wait on the fee bill until your priority date is about to become current

A reader asks:
I applied for NIW and submitted it at the beginning of this year. I applied for expedited application two months later and was approved early March. How long will it take to receive the NVC payment notice? Online status check shows that the case has been transferred to NVC.

Arthur Lee Esq. answers:
Congratulations on your NIW approval. After your I-140 is approved, your case is sent to NVC assuming that you chose consular processing as your means of applying for permanent residence. USCIS notifies NVC that your case has been approved, and instructs it to pre-process you for your permanent residence application through consular processing. Typically, NVC will first send you a welcome notice then contact you with a fee bill within 60 days of your petition approval. But if you are from a country with a long backlog, NVC may choose to wait on the fee bill until your priority date is about to become current. Therefore, if you have not received any communication from NVC, and your priority date is current or about to become current (per the “Date of Filing” chart), you may wish to follow up with NVC.

1. If I-485 is current and past processing times, you can place a service request online

A reader asks，
In September 2021, the I-485 I submitted was EB-1B and the PD has been current. At present, it has been two years since the approval, and it is still pending. The lawyer said that currently approval is usually within one year. Can I urge USCIS to take a look at the case?

Arthur Lee, Esq. answers,
Processing times for employment-based I-485 cases are different in each local field office and jurisdiction. You should ascertain which local field office or service center is adjudicating your I-485, and then look up the processing times here: https://egov.uscis.gov/processing-times/. I note that in many jurisdictions, including New York City, an employment-based I-485 filed in September 2021 would be past processing times. While there is no way to “urge” USCIS to look at your adjustment of status case, there are mechanisms to check your case.  As your case is past standard processing times, you can place a service request at https://egov.uscis.gov/e-request/Intro.do. Here, you may select “past processing times” and enter in the information on your case and inquire on its status. Although USCIS does not provide time estimates for responses on these types of requests anymore, you can likely expect a response within 30 days, hopefully of some substance. Another alternative is to call the USCIS “contact center” at 1-800-375-5283 to gather status updates on your case and inquire on what progress a USCIS “agent” sees on your case. The USCIS agent may also request that your officer look at your case (same effect as placing a service request online). It is important to keep your records of your service requests and your communications with “contact center” officers; if these requests are unsuccessful or yield unsatisfactory responses, you may do an ombudsman request, in which a DHS ombudsman staff member requests that USCIS looks into your case. Best of luck to you.

2. A request for reconsideration must come within 30 days of the denial

A reader asks,
Today I learned that PERM did not have an audit and was directly rejected. The reason was that one of the skills did not appear in the experience letter of the previous company. It’s an oversight on the part of the lawyer. Now, lawyers suggest reconsidering and re-filing together. Is there a high chance of reconsideration? It’s not that I don’t want to file again. I really don’t know if I can convince my boss to apply for me again in this situation.

Arthur Lee, Esq. answers,
I note that it is not common practice for attorneys to upload prior experience letters to ETA 9089 to the Department of Labor. Signed prior experience letters are typically reserved for the I-140 stage after the ETA 9089 is certified. Based upon your question, I assume that your facts are correct and if that is the case, your attorney prepared the relevant prior experience sections incorrectly in having requirements in your PERM job that were not met by your prior experience, education, or training. Specifically, it seems based off your description that your attorney failed to mention one of your skills in your prior experience summary that was one of the job requirements. In such a case, you may have significant trouble succeeding on a request for reconsideration as such does not allow additional evidence that was not originally filed with the ETA 9089. A request for review at BALCA also does not allow additional evidence. Therefore, unless your attorney’s description of your “skill” in your prior experience and the “skill” required in your PERM position are arguably a match and/or open for interpretation and you can meet the burden of proof in demonstrating that your adjudicator erred in his/her decision, your chances of winning a request for reconsideration appear to be low. Please note that a request for reconsideration must come within 30 days of the denial, and a review by BALCA must also come within 30 days of a denial by DOL or affirmation of the denial on reconsideration.

3. You may request a duplicate receipt on eRequest if you did not receive one

A reader asks: 
I am an EB-2 green card applicant. The application documents for the primary and secondary cards sent by UPS to the lockbox in Chicago in April showed that they had been signed for that month, but so far I have not received the receipt, and the check has not been cashed. I want to ask, is this normal? How long after delivery should I receive the receipt?

Arthur Lee Esq. answers:
Typically after a month, the check(s) will have been cashed and you would have received a filing receipt. You may wish to check whether your filing was sent to the correct address. Please note that filing addresses are different due to a myriad of factors including whether you are filing a standalone I-485; whether you have other applications such as I-765 and I-131 filed concurrently with it; I-485 category, etc. If you have filed your application to the correct address, but have not yet received a receipt, you may wish to call the USCIS contact center and try to locate your file by informing the officer of your “A” number if you have one. If you get a receipt number, that solves the issue, and you may request a duplicate receipt on eRequest if you did not receive one. If USCIS does not have a receipt for your case (which is likely because your check has not been cashed), you can email lockbox support at lockboxsupport@uscis.dhs.gov. In this email, you should include your name, “A” number if you have one, address, telephone number, and how you paid your filing fee. Please explain in your letter that you have sent your case to this lockbox, and it has been delivered and signed for, but that your case has not been receipted yet nor checks cashed. Hopefully through assistance by Lockbox Support USCIS will locate your case. If all else fails, you can refile your case assuming you have kept copies of all evidence–just issue a new payment. If your payment with your initial submission is checked, then contact the bank and cancel your second payment. Best of luck to you.

4.  You can use an approved EB-2’s priority date to apply for another employment based petition

A reader asks,
Since EB-1 also has a waiting period now, if I apply for EB-1 while I already have an EB-2 PD, will my PD be re-established or will the PD of the newly applied EB-1 be the same as the original EB-2 PD? If it is not the original EB-2 PD, will the application be invalidated?

Alan Lee Esq. answers,
I will assume that the EB-2 petition has already been approved. If so, and there are no applicable grounds for revocation, you can use the priority date for purposes of applying for another employment based petition, including EB-1. As your EB-1 case is now scheduled, I assume that you have already filed form I-485. Generally to accord an earlier priority date, you would request that the earlier priority date be assigned when you file the new I-140 petition. If you did not, hopefully the officer at the interview will allow for the transfer of priority date. If not and the EB-1 petition was filed without a current priority date, there would be a problem. If filed with a current EB-1 priority date and the date has retrogressed, the I-485 filing would still be valid although you might have to wait for the EB-1 date to again become current again before the officer can make a final adjudication on your case.

5. A NIW petition may affect the renewal of F-1 to return to the United States

A reader asks:
I am in my first year of postdoc OPT, studying for a PhD in the United States, and my current student visa F-1 has expired. I plan to apply for NIW and will it affect my return to the United States after returning to my country? Because F-1 is a non-immigrant visa and applying for NIW has immigration intent, will it affect the renewal of F-1 to return to the United States?

Alan Lee Esq. answers,
As you note, a F-1 visa is one requiring nonimmigrant intent. A NIW petition on form I-140 is an immigrant visa petition, a contrary concept. You may have problems renewing the F-1 visa since one of the questions on the DS-160 application form for a nonimmigrant visa is “Has anyone ever filed an immigrant petition on your behalf with the US Citizenship and Immigration Services (USCIS)? If YES, explain.” It may increase your chances of visa renewal to apply for the NIW petition after returning to the US.

1. After being fired and H-1B grace period is up, you can try to return to school to maintain nonimmigrant status

A reader asks:
The first time I applied for PERM in 2020, I was audited and I submitted supplementary materials. In early 2022, I was notified that it was rejected. The reason for rejection was that the recruitment advertisement did not comply with regulations. In mid-2022, the company was acquired, and the new company ran a second PERM and encountered a hiring freeze. After waiting for 6 months, I submitted the second PERM application in October 2023. However, I was suddenly fired last month and the PERM is still being processed. It is now the 6th year of H1-B and is valid until November. I have interviewed with several companies lately, but after chatting with HR, I was rejected. Some companies require to have I-140 in the 6th year. Some said that the company does not apply for PERM this year. They also contacted the company where I was fired. After the first round of interviews, they arranged for a second round of interviews next week. The result was two days before the interview. HR called and said role restructure, and the interview was canceled. I want to apply for NIW, but I only have a Master’s degree in CS from the US + work experience as a coder. I have not published any papers or participated in academic conferences. There are only more than 30 days left in the 60 day grace period, and I feel like I can no longer find a job due to status issues. What should we do in this situation now?

Arthur Lee, Esq. answers,
Based upon your summary of your education and work experience along with your lack of published papers and academic conferences, I do not believe that you would be eligible for EB-2 NIW. Unfortunately, your pending PERM will no longer be valid since your company laid you off (unless they agree to continue to sponsor you with a promise of having the position ready for you at the agreed wage upon your green card approval). Therefore, you would likely need to start over and find another company to agree to sponsor you from the beginning of the PERM process.
As you only have 30 days left in your 60 day grace period, you will need to either find a way to maintain your nonimmigrant status or leave the United States. To maintain your nonimmigrant status, you may try to find a company to hire you on your 6th year of H-1B, although this may pose a challenge to both you and the company since you would be capped at working for until November, and then you will need to find ways to maintain valid working status or stop working and go back to school, or leave the US. If you leave the US for a year, your 6 year H-1B allowance would reset, but you would need to win the cap lottery again or find a cap exempt employer to be eligible to work in the US. If you are lucky enough to find employment overseas with a multinational company with a branch or affiliate in the US, and you work in a year in an executive, managerial, or specialized knowledge capacity, then the company can transfer you to the US to work in its related company under L-1 status for 5 or 7 years.
Other ways of maintaining your nonimmigrant status include going back to school and changing your status to F-1 for the duration of your education, or changing your status to a “B” visitor, during which you may interview for future jobs. Best of luck to you.

2. Although the new job salary is $20,000 less than before, those I-485 applicants with higher salaries will not be affected 

A reader asks:
I have submitted my I-485 and recently received an offer base that is $20,000 yuan less than the base of the old company. I would like to ask, if I accept the offer and submit I-485J through the new company, and the salary is $20,000 less than the old company, will it affect the approval of I-485?

Alan Lee Esq. answers,
You would be relying upon a transfer of your case under I-485 J, which allows the labor certification and I-140 petition to remain valid if the I-140 petition is approved and the I-485 application pending 180 days, and the new job is in the same or similar occupation. Many factors are taken into account including job duties, SOC codes, job title, of which a $20,000 decrease is a factor to be looked at. It should be noted that $20,000 less when an individual is making a salary of $150,000 is less concerning than when the individual is making $50,000 or so under the labor certification.

3. Although your consulate office is listed in China, you may be able to have H-1B interview in Europe 

A reader asks:
Currently, I am in a small European country and plan to enter the United States to work in the near future. When the first H-1B visa address was chosen in China, there was a high probability that it would be checked. Considering that the current work is very tight and the check-in time is long, can the interview address be changed from China to the country where I currently am in Europe? Also can I get my passport back during the domestic visa interview?

Arthur Lee Esq. answers:
Even though you listed your consulate office as one in China when you filed your I-129 H-1B petition, you may be able to conduct your nonimmigrant visa interview in the European country that you are currently in. You may wish to check the consular post website to see whether it has guidance on its attitude toward third country nationals. If it accepts such cases or you are a resident in the European country, you can file a DS-160 with the European country after your H-1B petition is approved, and schedule an interview there. You may need to provide reasons why you are doing an H-1B interview in a third country rather than your home country–it is likely that a consular officer will be satisfied with your answer that you are currently living in that country and that it is much more convenient than going to China to conduct the interview. On your passport, a consular officer in this European country or China will take your passport to process the visa. The consulate may hold on to your passport for administrative processing if needed, but once a visa approval or denial is issued, you will have your passport returned.

1. I-485 has been waiting for more than 180 days, you can submit I-485J to change companies.

A reader asks:
I am an H-1B programmer and have applied for EB-2, but the priority is not current yet. H-1B sixth year. I submitted I-485 using Form B in early October last year and had my fingerprints taken in December, but unfortunately, I was laid off. Recently, the original company was transferred, and I got an offer from another new company. The work intensity of the two cultures is almost the same. The new company offers a lot of money, which is a level higher. My understanding is that the original company can 100% protect the green card, but the new company offers a lot of money and the job content is also interesting. If the I-485 is less than 180 days, what is the probability of being RFE’d if I go to the new company to get the I-485? If I-485 is rejected and unfortunately, I am laid off again, can I still COS B-2 pending to buy time and find a job?

Arthur Lee, Esq. answers,
In this answer, I assume that you have an EB-2 I-140 already approved or that your EB-2 I-140 will ultimately be approved, and that your former employer did not rescind your I-140. As long as your I-485 has been pending for 180 days or more, you may put in an I-485J porting request. For the porting request to be successful, you must be in a job that is in a “same or similar” occupation as the position on your I-140. Since your priority date is not current, it is unlikely that you will receive any RFE since USCIS will not adjudicate your case until you have a date available. Anyhow, if you receive a request for further evidence, that is not a bad thing–this is an opportunity for you to file an I-485J porting request. Since you properly filed your I-485 in October and this question is now being presented in April, I believe that close to 180 days have elapsed from the filing of your I-485 application. In such a case, if you receive an RFE (which typically allows you 87 days to post a response), you can file an I-485J porting request in response to your RFE. As long as you file the I-485J response at least 180 days after you file your I-485 application, your porting application can be accepted. Therefore, if your RFE is issued at least 90 days after your I-485 submission, you are likely eligible for porting assuming your new position meets the eligibility requirements–just make sure that you don’t submit your RFE response with the I-485J until 180 days have elapsed from the filing receipt date of your I-485.
In order to protect your working status in case of an I-485 denial, you may consider extending your H-1B beyond a 6th year through an H-1B transfer/extension to your new employer. You may be eligible for the H-1B beyond the 6th year if your I-140 or PERM Labor Certification Application (ETA 9089) was filed more than 365 days ago or the I-140 is approved and the priority date is still not available. In this way, you will have extra time on your H-1B and can continue to file extensions until your green card application is approved or denied. If your adjustment of status is denied, you will still have the time remaining on your H-1B to continue working for your designated employer. During that time, and assuming that the denial reason does not impede the following, you may try again with the porting employer or try to find another employer willing to sponsor you for permanent residence.
If you do not take the H-1B extension route, you may still attempt to change status to B-2 to try to find a new job as interviewing for jobs is permitted under this status.

2. I-140 application will not affect the issuance of H-1B by the consulate.

A reader asks:
I haven’t been back to China for a long time. Currently, I have the I-140 approval letter and can only go back and apply for the H-1B visa before coming back. I-140 approval has not arrived yet. Is it difficult to return to China to apply for an H-1B visa? I wonder how long it will take to apply for H-1B now?

Alan Lee Esq. answers,
At this time, there appears to be more scrutiny of Chinese students, especially those in the STEM programs at the postgraduate level, by CBP at certain airports in the US. That being said, the H-1B visa is dual intent, meaning that you can have both immigrant and nonimmigrant intent at the same time. So the fact of the I-140 filing should not affect any decision concerning H-1B visa issuance at the consulate. Current consular wait times in China to get an appointment at the American consulate are 56 days in Shanghai if there is an interview and one day if no interview required. Also seven days in Beijing if an interview is required and one day if not. Please note that this does not take into account any further time after the interview if your case is placed under administrative processing.

3. There is nothing that says that an individual cannot hold two full-time H-1B positions at the same time

A reader asks:
I was recently laid off by my company, but I am still on the payroll, and the Termination Date is just after 180 days of my I-485 pending. Now, I have received an offer from a new company, and they want me to start work as soon as possible, preferably next month. However, I have two questions now: 1. Is it illegal if I start work before the Termination Date? Can an H-1B holder work two full-time jobs at the same time? If I start work before 180 days of my I-485 pending, can I pretend nothing happened and then submit my 485J after 180 days? 2. If neither is feasible, what should I do? Of course, I understand that it would be safer if I could postpone it to after the Termination Date, but the new company only gave a verbal offer. I am very worried that if I start work too late, they will not give me an offer.

Alan Lee Esq. answers,
I am sorry to hear that you have been recently laid off by your company, but it is favorable that your termination date is so long after the filing of your I-485. On the question of illegal employment if you join the company now, there is nothing that says that an individual cannot hold two full-time H-1B positions at the same time although it may be difficult to see how this can be done in terms of the number of hours in every day. Joining another company without a proper work authorization is not legal even if you have filed the I-485 application. If you have an EAD card through the filing of form I-765 with your I-485, you may be able to legally join the new employer. After the 180 days has passed, you and the new employer can file the I-485J supplement so long as the new position is in the same or similar occupation.