Month: September 2024

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.