Year: 2024

1. You may be able to switch to the new job after 180 days of concurrently filing your I-140/I-485

A reader asks:
Currently, I have been in this company for many years and am somewhat underpaid. The salary is about 80% of the market rate. Fortunately, there is no risk of layoffs. I found a FAANG (5 high-tech companies – Facebook, Amazon, Apple, Netflix and Google) job some time ago, and my salary was about 30% higher than my current salary. Should I submit the I-140 to this company first? How long does it take from application to approval?

Arthur Lee Esq. answers:
In this answer, I assume that your current company has a certified PERM labor certification application for you, and that it is eligible to submit an I-140 on your behalf. Since you are considering this FAANG position, I further assume that you have discussed the position with your prospective employer, and that it is willing to possibly sponsor you for PERM labor certification. A final assumption is that you will not be filing any employer-flexible employment-based petition such as EB-2 NIW or EB-1A. In your situation, you have a few options. First, you can ask your current employer file an I-140 for you and wait for it to be approved prior to transferring to the FAANG company. Of course, the caveat here is that the FAANG company may not still be willing to hire you after the time that the I-140 is approved or your employer may attempt to revoke the approval if it feel victimized by you. Additionally, in order to have employer-flexibility and “port” your job after filing your I-140, more conditions must be met. The I-140 must be approved or pending, and you must have an I-485 application that has been pending for at least 180 days. So for this to work ideally, your priority date should be current so that you can concurrently file the I-140 and the I-485. After this, you would be able to “port” your job after 180 days of filing your I-485 application to a same or similar job at the FAANG company. To complement this strategy, if your current employer agrees, you can file premium processing on your I-140 for an additional $2,805 so that you can be potentially have an approved I-140 after 15 business days. Without premium processing, an I-140 petition typically takes somewhere from 6 months to a year to adjudicate. In sum, under this strategy, you may be able to switch to the FAANG job after 180 days of concurrently filing your I-140/I-485, and not have to have the FAANG company do another PERM labor certification application on your behalf. Of course, if your priority date is not current, you will need to wait for it to become current until filing the I-485, and then wait 180 days thereafter to change jobs to the FAANG company via H-1B transfer or another legal mechanism. If your employer files an I-140 that is ultimately approved, but you are not able to file an I-485, you may at least be able to retain your priority date for a second employment-based immigrant petition.

Your second option is to just accept the FAANG offer, and do a work visa transfer to them without your current employer filing an I-140 on your behalf. The upside to this is that you will be able to accept the FAANG offer while it is still fresh and not risk that ship sailing. The downside is that you will forgo the PERM labor certification that your current employer has done for you, and have to redo the labor certification process with the FAANG company which will add approximately 2 years to your process (ETA 9141 currently taking 6-7 months to adjudicate and ETA 9089 over a year at this time). Unless you have an approved I-140 that has not been revoked by your previous employer, you will not be able to retain your old priority date either. Therefore, if you are willing to wait longer for your permanent residence while maintaining nonimmigrant status in the US and make more money in exchange, then this could be a viable option for you. 

2. If you are uncertain about your ability to obtain a renewed H-1B visa at your home consulate, having Advance Parole as a contingency plan could help

A reader asks:
I am EB-3, Form B is current this month, but Form A is not yet available. The lawyer now plans to submit I-485 and combo card applications at the same time, but I just returned to China last month to renew my H-1B stamp, and my H-1B visa (I-797) has also just been renewed for three years. I originally planned to go to Costarica for a vacation at the end of this year and return to China to visit my family in May next year, but now once the AP card application is submitted, I cannot leave the country. The lawyer said that it now takes about 12 to 15 months to get the AP card, which means that all overseas travel plans for next year (and maybe the year after) will be cancelled. Now, I want to tell the lawyer to only submit the I-485 and not submit the EAD and AP card applications, because considering that my H-1B stamp has one year to expire, the AP card will only be valid for 1 year even if I get it, and H- 1B visa stamp has about the same length of effect. In this case, I can return to my country with a valid visa next spring and wait until the visa stamp expires before applying for an AP card. Is it okay for me to think about it this way? My job is relatively stable. Although the salary is not high, I am not particularly worried about being laid off suddenly. If I don’t apply for an AP card now, will there be any other risks?

Arthur Lee Esq. answers,
While this is up to you, there is still some value in applying for the EAD & AP in your situation. The fact that you have fresh H-1B status with close to 3 years of validity is great in that it reduces the urgency in your situation to apply for an EAD and AP. You can freely travel back and forth on your H-1B visa as long as you are still employed at your H-1B sponsoring company or have a valid H-1B transfer petition approved. After your H-1B visa expires, you can renew at your home consulate when you return next Spring by applying for a DS-160 and having all necessary evidence available including your valid LCA, job letter from the company, and H-1B approval. Having an advance parole approved does not negate your H-1B visa. You can just use your H-1B visa to come in and out of the United States. Where the advance parole may benefit you is if your I-485 case takes more time to approve than the validity of your H-1B status. Of course, the advance parole is only valid for periods of to one year if not renewed. So you could consider applying for EAD & Advance Parole closer to the expiration of your H-1B if you so desire. If you wish to coordinate the advance parole with your H-1B status expiry, you could apply for the benefits about 12 months before the date of your H-1B expiration. Your I-485 case could possibly take longer to adjudicate than the validity of your H-1B status as employment-based cases in some jurisdictions are taking long to adjudicate—you can see the USCIS processing time charts for an approximate waiting time on your type of case—and because your priority date is not current with respect to the Final Action Dates (“Chart A”) yet. If your green card case is not approved yet, and you have an advance parole, you would generally be able to depart and enter the United States without needing to extend your H-1B status. Also, if you are for any reason uncertain about your ability to obtain a renewed H-1B visa at your home consulate, having Advance Parole as a contingency plan could help. While applying for I-485 without EAD or Advance Parole may work for you especially as you have nearly 3 years of H-1B validity, you may want to consider the above benefits and decide whether they are worth the extra applications to you. But aside from the costs, there are no perceptible downsides to applying for EAD and AP.

1. After filing form I-485, you are not allowed to leave the US without advance parole 

A reader asks:
I reviewed a copy of my filing papers today and I found two mistakes: 1. There were two addresses one in the United States and the other in China, both of addresses were put down as the present address. My lawyer discovered these problems before and I made the correction.  Unfortunately, the submitted paper was still incorrect. I worry it will affect my I-485 filing, and I must stay in the US for an RFE. 2. The preparer’s signature on the last page of I-485J was signed by my lawyer in 2022, while the previous pages were all dated 2023. I am going back to China next month, and I don’t know whether I should wait in China or not. At present, my lawyer has not responded to me whether it will have any impact. Please tell me, how deadly are the problems?

Alan Lee Esq. answers:
On your first mistake concerning your address on the I-485 application, USCIS will generally send all communications to both you and your attorney, and so if you do not receive a letter from USCIS, your lawyer will most likely inform you of its contents. I will also assume that USCIS believes that you are inside the United States since it did not reject the I-485 application, which can only be filed by individuals physically present in the country. On the second mistake of the I-485J signed by the lawyer in 2022, that is probably not a major problem as the signature date could have been a mistake. Otherwise, USCIS could RFE for a new form. Kindly note that after filing form I-485, you are not allowed to leave the US without advance parole unless on H-1B or L-1 visa.  If not in the 2 classes, leaving without an approved advance parole is grounds for canceling the I-485 application.

2. If you are not planning to immediately go to the US, don’t file EB-1A too early

A reader asks:
I am an associate professor in China, my job is ok, and I can apply for EB-1A, and I think I have a chance to get a green card. Even if I obtain a green card, I am unlikely to go to the United States immediately looking for a job, because my child is only 7 years old, and I plan for him to go to college in the future.  For my child, I want to apply for a green card. I would like to ask, is it too early to apply now?

Alan Lee Esq. answers:
The basis of all employment-based green card applications including EB-1A is that the individual will immigrate to use his or her talent and skill in this country. If you are not planning to immediately go to the US to find a position, then it would appear to be too early for you to apply for EB-1A status. Your concern appears to be your child going to college, and since most children here enter college around the age of 18, that is over 10 years according to your plan. An EB-1A case takes approximately 2-3 years if everything goes well, and so if you made the application now and are successful, you would have to figure out how to maintain your green card for 7-8 years before your child is of an age to enter college in the US.

3. B visa holders should be wary about submitting adjustment of status applications within 90 days of entering the US.

A reader asks:
B chart is current, but I am in mainland China. Does B1 visa holder must submit I-485 after 90 days of entering the United States? My lawyer told me that if the B chart was about to be closed, I could submit I-485 directly even it was within the 90 days period, and it should not be any problem. Will I-485 be approved only when the A chart is current?

Alan Lee answers:
Generally speaking, individuals on B visas should be wary about submitting adjustment of status applications within 90 days of entering the US. Although the 90-day rule has been largely disavowed, many immigration officers may believe the taking steps to submit I-485 applications within a short period of time of entering the States may be indicative of a misrepresentation at the time of entry that the individual had nonimmigrant intent to return to the home country. That being said, you may have misunderstood your lawyer and he or she may have considered the pros and cons and thought that in your case with Chart B of the visa bulletin (dates for filing chart) about to be closed, the better strategy would be for you to file even if within 90 days of entry. If you file for the adjustment of status before Chart B closes, you will have to wait until your priority date exceeds the date on Chart A (final action date chart) of the visa bulletin before your case can be approved.

4. If it has been more than 30 days since you received the email, and you have not yet received your receipt notice, you can request online

A reader asks:
I received an email reminder from the USCIS on January 17 that the filing fee and expedited money for my case have been deducted, but I have not yet received the receipt notice in the mail. The mailing address is the address of my house where my roommate has been. However, I have set up mail forwarding to forward emails to my wife. Now, neither side has received it. Is this normal?

Alan Lee Esq. answers:
I assume that by this time you have already received further word from USCIS, and that your question was sent within 2 weeks of you receiving the email from USCIS in January. If you have mail forwarding, the US Post Office forwards the mail to the location for forwarding. Although it does not forward certain documents from USCIS, it will generally forward a receipt. Please note that it takes time for USCIS to generate a physical receipt to send out, and it also takes the post office time to forward the mail. If it has been more than 30 days since you received the email, and you have not yet received your receipt notice, you can place an eRequest online at https://egov.uscis.gov/e-request/intro.do , then click on “did not receive notice by mail”. Go through the form, fill in all your needed information, and specify that you did not receive your receipt notice.  Hopefully, your situation will be resolved before you need to submit an eRequest, but by submitting an eRequest, you will alert USCIS that you still did not receive your notice.

5. For personal case inquiries, it is best to contact the USCIS Contact Center

A reader asked:
I am in China. About three or four years ago, I submitted I-140 at an immigration agency through a friend’s recommendation. I asked many times during this period, but the other party said that there was no result and it was still pending. I asked the other party for a receipt number, but they refused to give it. I suspected that it was never submitted. In the past few days, I asked the artificial Emma on the official website of the Immigration Bureau to check the receipt number. I changed to 4 different artificial Emmas and provided them with my name, birthday, mailing address etc. They all said that it could not be found in the system.  Is it possible to prove that it was not submitted? My friend said that since it has been submitted for so long, Emma should be able to find the receipt number through my information. Is this true?

Alan Lee Esq. answers:
Emma is not designed to locate applications or petitions for which there is no receipt. For personal case inquiries, it is best to contact the USCIS Contact Center telephonically at 1-800-375-5283 and explain your problem to the USCIS representative. I do note that contact representatives run the gamut from being very patient to impatient and that an impatient one may not be disposed to search the system to see whether a petition for you has been filed. Hopefully upon getting through, the representative will be helpful.

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.

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.

1. USCIS would not expedite work authorization unless one of the five conditions exists

A reader asks:
I submitted I-485 for EB-1B in June. The main applicant has a work visa, which is still valid for more than two years. I would like to ask if it is possible for the secondary card to pass the expedited comb due to financial loss? Because if you review it carefully, you will probably find that the main applicant has a job. It is speculated that it may be helpful to have two children, which will make the burden heavier.

Alan Lee, Esq. answers:
It does not sound like financial hardship where your spouse already has a job and a work visa even if you have two children and a heavier burden. So that is not in my opinion a good reason to expedite your green card case. In addition, a dependent green card cannot be approved before that of the principal applicant. In your situation, it would appear that you can apply for employment authorization based upon the I-485 adjustment of status filing. If your husband is holding H-1B status, you are eligible to apply also for employment authorization as the spouse of a H-1B holder who has an approved I-140 petition. In both situations, USCIS would not expedite work authorization unless one of the following conditions exists:

• Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
• Emergencies and urgent humanitarian reasons;
• Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
• U.S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
• Clear USCIS error.

2. EB-1A denied, maybe wait until you have developed new circumstances that may strengthen your case before submitting a new petition 

A reader asks:
I submitted EB-1A to TSC in July and responded to the request further evidence in August. I just learned that my EB-1A was denied. My attorney told me that the officer who adjudicated my case had an approval rate of 14% in 2023, so it was not surprising that my case was denied. However, my attorney suggested me to wait for 3 to 4 months before refiling to avoid the same officer to adjudicate my case again.

Now I have two choices: 1. Wait for 4 months before refiling to TSC; 2. Submit it now to NSC. I inquired my lawyer for advice and he told me he had no opinion and that I should make a decision on my own decisio. He just told me that my denial will not affect the next application, and whether a case is approved depends largely on the adjudicating officer.

Therefore, I feel like I should submit many applications as if you submit many application, even if I get denied many times, I just need to be lucky enough to be approved once. Please tell me, should I wait for another 4 months to refile again to TSC, or should I refile to NSC immediately?

Alan Lee, Esq. answers:
No one is certain of approval when submitting EB-1A petitions and how an officer may view the evidence presented of extraordinary ability short of a Nobel prize or Oscar (and we have heard of USCIS giving such a petition a difficult time even when the petitioner did have an Oscar in one of the nonmajor categories). I note that the I-140 petition requests information on prior filings which means that an officer has the opportunity to look over your past filing. Unless you truly believe that you had a very strong case that was wrongly rejected, our opinion is that you may wish to wait until you have developed new circumstances that may strengthen your case before submitting a new petition to USCIS.

3. Whether to move forward now with NIW petition

A reader asks:
My wife and I just came to the United States. We are currently studying for a Ph.D. and have some papers and citations. I have consulted with a lawyer and found out that I can apply for NIW under current conditions. I don’t know whether to apply as soon as possible or wait until I graduate soon? There are several tangled points: 1. According to the current queuing speed of NIW, will I not be able to get in line after completing my PhD? 2. The visa is for 5 years. If I apply for I-140, is there any risk in returning to my country? My wife is F-2, does it have no impact on her return to China?

Alan Lee, Esq. answers,
NIW is under the EB-2 category and the current date of availability (when an immigrant visa or adjustment of status can be granted for those who have approved NIW petitions with USCIS) is for petitions filed earlier than January 1, 2020. So there is a significant waiting time after submission of your case. That being said, having a PhD may strengthen the NIW petition, especially if the PhD is in the STEM sciences. So you should take these factors into account in deciding whether to move forward now with your NIW petition. The other factor that you ask about is the risk of traveling back to the home country, China, during the process as you have a visa for five years. Generally speaking, persons with visas do not have to apply for new ones at US consulates or embassies and do not experience problems coming back into the US. That being said, you may wish to keep abreast of developments involving Chinese students on PhD degree programs involving research, some of whom have been experiencing difficulties with Customs and Border Protection officers on reentering the country. That may apply more to you than to your wife, and I do not expect that that would be much of an issue if your wife is traveling alone.

4. The rescheduling of biometrics should not greatly affect the speed of your processing

A reader asks:
I estimate that I can pass form BROW and submit I-485 in October. However, due to an emergency at home, I plan to return to my country after submitting the I-485. The reserved H-1B has been checked, and it is very likely that I will not be able to take fingerprints in time, so I will most likely need to reschedule. My PD is September 12, 2022. ROW’s form A is not current yet. Will doing this cause it to turn green slowly?

Mr. Lee answers:
USCIS cannot approve an employment based I-485 until the priority date becomes current. Even then, USCIS has its own backlog processing time even when the date becomes current as it does not have enough hands to process all cases when they become current. So the rescheduling of biometrics should not greatly affect the speed of your processing even though the agency in our experience does not continue processing cases and their related applications until biometrics are completed. In the past, requesting rescheduling could sometimes result in cases being denied as USCIS officers did not coordinate the request for rescheduling with the application. That has hopefully been largely resolved by the agency’s recent update to rescheduling wherein applicants are invited to make their own online rescheduling requests to USCIS through their existing online account or by creating an online account. Good reasons for requesting a rescheduling as per the USCIS policy manual are:

• Illness, medical appointment, or hospitalization;
• Previously planned travel;
• Significant life events such as a wedding, funeral, or graduation ceremony;
• Inability to obtain transportation to the appointment location;
• Inability to obtain leave from employment or caregiver responsibilities; and
• Late delivered or undelivered biometric services appointment notice.