1. Working while the I-765 application is pending is unlawful
A reader asks:
I applied for EB-1A, but my I-485 was rejected because I did not have a work permit for more than 180 days. However, I did not work when I did not have a work permit. How can I prove that I did not work illegally?
Alan Lee Esq. answers,
The question that I have is whether your I-485 was denied for not having a legal status for more than 180 days or for working unlawfully for more than 180 days. Having or not having a legal status is fairly cut and dried just by looking at your status papers, while the question of unauthorized employment may not be. For that, the facts count. What does the I-485 application say insofar as your employment for the past five years is concerned? Are you aware that you are only allowed to work with specific authorization even after filing the I-485 adjustment of status application? The filing of the I-485 itself does not give work authorization. In such case, many individuals file for an I-765 employment authorization application along with the I-485 and wait until it is approved before working. Working while the I-765 application is pending is unlawful unless an individual has some other basis to be employed. Was there an immigration interview and did you admit to the USCIS officer that you worked illegally? If you believe after reading the above that the decision was incorrect, you can file for a motion to have the decision reopened and reconsidered within 30 days of the decision and send in whatever proof that you may have of not having worked illegally including possibly affidavits from yourself, from your employer (if you have one) along with copies of all your pay statements showing that you did not work during the contested time.
2. A one-year extension can be requested where the labor certification application has been pending at least 365 days
A reader asks:
My second H-1B will expire in late August next year. Due to personal reasons, my lawyer just helped me file a PERM application in May this year. Considering the current timeline, is it too late for me? What other options do I have before my H-1B expires next year?
Alan Lee Esq. answers,
It is currently taking approximately 11-12 months for the Department of Labor to reach a PERM labor certification application after filing. If the ETA 9089 was filed in May, the chances are that it will be reached for adjudication by August. Even if it is still pending by the end of your H-1B status in August 2025, you and your sponsoring organization remain eligible to file a H-1B extension petition under the rule that a one-year extension can be requested where the labor certification application has been pending at least 365 days. As it is not too late for you under the above circumstances, there does not appear to be a need to discuss any other options.
3. Waiting quietly and hoping to get the green card without doing anything else when the company closes may cause problems down the road
A reader asks:
My lawyer is helping me apply for an expedited I-140, and he said that I can probably file an I-485 next month. However, my company is running low on money, and it will close in six months. My boss said that I have to pay for the I-485 myself. I calculated that my wife and I will have to pay for various miscellaneous expenses. What I am thinking is that if I file now and the company goes bankrupt, my boss will definitely not be in the mood to notify USCIS that the company is no longer viable (he doesn’t even know that there is such a thing). Assuming that I don’t encounter an RFE or an interview, can I quietly wait for the green card without leaving the United States? What is the probability of not encountering an RFE and an interview? If I look for a job now, it’s not that I can’t find one, but I have to start the green card process again from PERM. Should I pay this money?
Alan Lee Esq. answers,
It appears that your lawyer is trying to do everything that he or she can to have your permanent residence approved before your company closes. If the I-140 immigrant visa petition is approved, the I-485 adjustment of status application is filed, and 180 days have passed, your lawyer can attempt to port your case to another employer if you can find one which can offer you a position in the same or similar occupation. I do not know the probability of your having an RFE and interview if the company closes and you do nothing except hope that USCIS will just send you the green card. The matter of whether to pay the I-485 application fees by yourselves is a decision that you will have to make yourself. Please note that the strategy of waiting quietly and hoping to get the green card without doing anything else when the company closes may cause problems for you down the road, especially if you attempt to become a US citizen and must encounter a USCIS officer at interview at that time.
4. When USCIS issued the green card by mistake, it is recommended that your attorney to take care of the situation
A reader asks:
It has been a month since I received my green card. Then I received an interview notice last week, and the online status returned to “case was interviewed”. What should I do? The lawyer said that he received a response from USCIS, saying that there was an error in the interview appointment. I am worried that the Immigration Bureau will count my case as a no show and deny my case. Please ask, should this be okay?
Alan Lee Esq. answers,
Although rare, we have seen and in fact had a case in which USCIS approved our client’s permanent residence, and then sent out an interview notice. We quickly resolved that with USCIS and assume that your lawyer will do the same, especially if he is informing you that USCIS already responded saying that there was an interview appointment error. I suggest that you allow your attorney to take care of the situation as he or she appears to be on top of it from what you say in your question.
