Year: 2025

1. Encouraging organizations to begin PERM labor certification applications at latest when H-1B holders have finished the first three years

A reader asks：
I’m currently in my third year on an H-1B. My boss supports my green card application, but I’m a junior employee and haven’t been promoted yet. Our company’s policy is for managers to apply for JD Manager status. I’ve applied three times, but the immigration team rejected each application, saying it wouldn’t be approved. After some research, I think my situation is more like a YOE0, as I only have about a year of internship experience. What should I do? Should I consider changing jobs? Or should I talk to my boss again? Are there any other options? My current job is relatively stable, and my boss treats me very well. The only downside is the location. This is a rural area, and I’m feeling a bit depressed living here. I work as a model development analyst. I’m a bit unsure what to do.

Alan Lee Esq. answers:
As you are currently in your third year of H-1B, you would already have had two years of prior experience either within the company or outside. The manager can perhaps consider the company requirements for the position taking a harder look at your experience and other qualifications, or the company could perhaps consider you for a future position in which your current experience would be relevant. Your company appears to have a set procedure for beginning labor certification applications, which is commendable. You should continue to work with your manager as it does not appear hopeless at this time from the facts as you have given them. If you do decide to switch jobs, you may wish to confirm with a subsequent employer that it will start your PERM application soon since the process -from putting together job description and requirements, going through the prevailing wage determination, recruitment, and running time of labor certification applications – is currently very long. We ourselves are encouraging organizations to begin PERM labor certification applications at latest when H-1B holders have finished the first three years of the usual six-year period of time for H-1B’s, if not earlier.

1. EB-1A was approved; there are options for your spouse to maintain legal status

A reader asks:
My EB-1 has been approved, and I plan to file my I-485 next month. I have a NIW visa cutoff for December 2022, so I can file. My wife just quit her job a few days ago. I was thinking that since my I-140 was still a long way off, I’d switch from H-1B to H-4 and take a break, then look for another job after getting my Combo EAD. But then, my EB-1A was approved, and my wife has officially submitted her resignation to her employer, so she can’t continue working and maintain her H-1B status. However, since I have almost all the documents ready, there should be no problem filing the I-485 within the next two months. If my wife’s H-1B grace period is still in effect, does she need to first file an H-1B to H-4 conversion and then file an I-485?

Alan Lee Esq. answers:
There appear to be three situations for your wife. The question is which one she wants to take, and this may have to do with gambling on the experience of the USCIS adjudicating officer.
The one option that everyone understands is filing to change status from H-1B to H-4 since a timely request to change status preserves nonimmigrant status. The second option to file the I-485s  within the 60 day grace period allowed for individuals on H-1B who leave or lose their positions. This requires more understanding from an immigration officer that the H-1B holder is legally in status during the 60 day grace period. The third option is to file outside the 60 day grace period relying on an immigration provision, §245K, which allows up to 180 days for a person not in status to still be able to file adjustment of status applications so long as the application is employment-based and the individual entered the US with a visa. This requires a little more understanding from an immigration officer.

2. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa

A reader asks:
I’m a SWE2 at a Chinese company in H-1B status. I received notification this week that my I-140 has been approved. Over the past year, layoffs at various companies and the slow progress of my team’s projects have left me feeling extremely exhausted and often sleepless. I’m desperate for some rest. My family has been asking me to go back to visit my elderly family, so I’m considering returning to China. I’m thinking of taking this opportunity to return. I know that if I get my I-140 now, the green card wait time will be many years. Can I return to my home country now, then use my H-1B to find a job in the US in a few years, and then return? I can skip the lottery and apply for a new perm and I-140, ensuring my status is complete by the time the wait time comes. Is this feasible? Another question: My H-1B expires in September of this year, and my company has already applied for an extension, effective in September. How will this affect my return to my home country?

Alan Lee Esq answers,
Under your first scenario of going back to your home country and trying to come back to the US after a few years, you should be able to use the time that you have left under the H-1B to find a US job and return. You would avoid the visa lottery, and you may be able to have another company start up your PERM and I-140 processes picking up your priority date along the way. I assume that your concern about the H-1B extension goes to your other scenario of only returning to your home country for a short break and some travel with your parents and then coming back. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa.

1. In applying for the green card, you should disclose all nationalities.

A reader asks:
I previously worked in Canada for a US company for a year, then came to the US as a Chinese national on L-1 status. I later became a Canadian citizen (but would like to retain my Chinese identity). My company is applying for a green card for me, but I have a few questions:

1. Do I need to fill out the citizenship form on the green card application? Do I need to add that I’m a Canadian citizen? My US visa is for my Chinese passport, and currently only states “China.”
2. If I truthfully state that I hold both Chinese and Canadian passports, can I apply for a green card using my Canadian passport? However, I’m a Chinese national in the US with L-1 status. If I disclose my Canadian status, will my Chinese L-1 status still be valid in the US?
3. I’m working and living in the US with an L-1 visa (Chinese passport), but need to use my Canadian passport when returning to Canada. What should I do about round-trip travel between the US and Canada? Do they use their Chinese passport for entry and exit in the US, and their Canadian passport for entry and exit in Canada? However, sometimes flights check for valid visas when picking up their tickets. If I don’t have a Canadian visa or green card, can I just show my Canadian passport? However, the Canadian passport is not the same Chinese passport I used to purchase the ticket.
4. Can I travel from the US to other Canadian visa-free countries using my Canadian passport without a visa? That way, there would be no exit record from my Chinese passport in the US on my return trip. Is this possible?
5. Can I use only my Chinese passport to travel back to China from the US in the future?

Alan Lee Esq. answers:
While not claiming to know any immigration laws other than the US, it is my understanding is that China does not allow dual citizenship. It would appear that your questions concern  attempting to dance between passport presentations to one country or another. In applying for the green card, you should disclose all nationalities. The green card application is tied to your meeting the requirements for the green card, not to your passport. Revealing your Canadian citizenship should not affect your L-1 status as the L-1 depends upon your continuing to meet requirements of L-1 eligibility. On your questions 3-5 concerning which passport to use for entry and exit or to go to visa free countries or China, I cannot claim to know the answers as I am not aware of the immigration rules of Canada, visa free countries, or China. I would venture guesses that for Canada and visa waiver countries, you can use the Canadian passport although you should carry both and for China, it only recognizes one passport. Perhaps other legal counsel dealing in international law could answer your questions with more certainty, or you could contact consulates or embassies of the countries to which you wish to travel. Good luck.

2. You should obtain another position in the same or similar occupation prior to the adjudication of your I-485 application.

A reader asks:
I was currently an EB-3 applicant last year, and a major company filed an I-485. I had my fingerprints taken in September 2023 and received my combo card in mid-2024. I’ve been waiting about 450 days for my green card. In October 2024, I changed jobs to a Chinese company and applied for an H-1B transfer. I’m still on H-1B status. However, the new company hasn’t filed an I-485j yet. Your attorney must file it when you have a green card interview; don’t file it if you don’t have one. A week ago, I was unfortunately laid off and am now in the H-1B grace period. I have a combo card, so I’m not worried about legal stay in the US, but I’m concerned about green card approval. Will the company that laid me off not file an I-485j for me affect my I-485 approval? It’s my understanding that if I haven’t found a job after 60 days, my combo card will automatically be used to maintain my US status. Does that mean I don’t have to worry about being unemployed after 60 days? I just need to make sure my next company files an I-485j for me during the green card interview.

Alan Lee Esq. answers:
As you have maintained status at all times and are now in the H-1B grace period, your status is still good to file for a further H-1B with another employer at this time or to continue employment on your combo card assuming that it is not expired or expiring. In your situation, you do not have to worry about the fact that your last employment did not file for job porting under I-485J. You should ensure, however, that you obtain another position in the same or similar occupation prior to the adjudication of your I-485 application. You should not depend upon waiting until you receive a notice of interview as USCIS may make a decision on your employment-based case without giving you an interview.

3. After activating the Combo EAD card, you would technically have no status if your I-485 application is denied.

A reader asks:
After activating the Combo EAD card and starting to use it for work, if my I-485 is later rejected, can I still switch back to H-1B? I know this question has been asked many times, but the answers seem to vary. How do I do this specifically?

Alan Lee Esq. answers:
If relying upon only the combo card, you would technically have no status if your I-485 application is denied. In order for you to obtain H-1B status again, you would have to leave the US after H-1B approval (prior to 180 days of unlawful presence after the denial) and reenter the country under H-1B status. H-1B is a dual intent visa, and so the fact that you have applied for the I485 previously should not factor into the question of admissibility. What may be considered are that the I-485 was denied and the reason(s) behind the denial.

1. Where the job is lost during the I-485 process, USCIS allows job portability for a same or similar position

A reader asks:
I’m about to lose my job, but I have absolutely no motivation to look for another one. If I understand correctly, you still need a job similar to your previous one while your I-485 is pending. Do you need to be employed or at least have an offer and have submitted an I-485j when your green card is approved? Are there any location, salary, or start date requirements for the new job? How can I get a green card with minimal effort?

Alan Lee Esq. answers:
It is requisite for an applicant for I-485 through PERM sponsorship to have the job offer available from the sponsoring employer at the time that permanent residence is approved. The applicant should then continue to work for the sponsoring employer for some period of time after permanent residence is approved to show continued commitment to the job. Where the job is lost during the I-485 process, USCIS allows job portability where the applicant is able to locate a same or similar full-time position. This occurs where the I-140 petition has been approved and I-485 has been pending for at least 180 days. You should find a new opportunity prior to the adjudication of the I-485, not after. I cannot tell you how to do this with minimal effort. Location is not a concern for job portability although salary may be taken into consideration in judging whether the new position as in a same or similar occupation. The start date is best to begin before the I-485 adjudication, assuming that you have employment authorization to take up the position – otherwise at the time that the permanent residence is approved.

2. The company was sold, PERM will most likely have to be refiled

A reader asks:
My company’s office (a small division of the main company) is being sold, but I’m staying with the main company with the same role and job duties, although I will likely be fully remote since there will no longer be a physical worksite. My residence is in the same metropolitan statistical area (MSA) as the current office, and my PERM is still processing. Do I need to restart the PERM process under these circumstances?

Alan Lee Esq answers,
I believe that given the circumstances as you have presented them, the PERM will most likely have to be refiled. The rule of thumb is that a PERM application cannot be changed once it has been submitted. The first issue has to do with the sponsoring organization. If the employer as listed on the PERM application was the small company which is being sold and not the parent, there is an incongruity as to the sponsor that cannot be fixed unless the acquiring company adheres to and satisfies succession in interest rules. If the employer is listed on the application was the parent company, this problem could be avoided. The second issue would appear to be the worksite becoming fully remote. That in itself is a change of circumstance if the recruitment specifically designated a worksite. In that situation, the description of the job changes as the position would become more attractive to US workers and opens up the recruitment to anyone in other US states who may be interested in working from home even if the company itself is in a faraway state.

3. If your case is exceeding USCIS published processing times, you can check online

A reader asks:
I applied for EB-1A for more than half a year, and no one has contacted me. Could there be an issue with my application? I feel like my case was forgotten. Should I email the MDPI to ask why it is still pending and hasn’t even been denied?

Alan Lee Esq answers,
I assume by your question that you are complaining about not receiving a decision, as you would like to communicate with USCIS to ask why it is still pending and why you have not even received a rejection notice. That is because the processing time for EB-1A exceeds six months for the service centers adjudicating this category of cases. There are two – the Nebraska Service Center is taking 14 months to reach 80% of its filed EB-1A applications while the Texas Service Center is at 15 months. https://egov.uscis.gov/processing-times/

In the event that you believe in the future that the service center handling your case is exceeding USCIS published processing times, you can check the processing times through the above link, enter your case type and your USCIS office, and the website will inform you of the normal processing times for your type of application. You can also enter the date in which your application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times.
If it is outside normal processing times, then you may file an eRequest (https://egov.uscis.gov/e-request/Intro.do ) or chat with EMMA (https://www.uscis.gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative.

4. The NVC generally assigns the interview location to the consulate requested on the immigrant petition

A reader asks:
My talent visa application has been approved, and I now have temporary status in Hong Kong. At the same time, I applied for U.S. immigration. If my priority date becomes current, can I schedule a visa interview at the U.S. consulate in Hong Kong?

Alan Lee, Esq. answers:
The NVC generally assigns the interview location to the consulate requested on the immigrant petition, e.g. I-130 or I-140. If you obtain temporary permission to reside in Hong Kong, you should normally be allowed to have your interview in Hong Kong. You can request in writing to the NVC to have the site of your interview changed to Hong Kong with proof of your ability to remain in Hong Kong if Hong Kong is not already the designated consulate.

1. Can I apply for an O-1 visa to start working in the U.S. if my EB-1A is approved

A reader asks:
We are in the UK and applied for EB-1A, with mainland China as our country of birth. We heard the wait time might be up to 5 years, which is daunting.  If EB-1A is approved, is there any way to enter the US sooner without waiting for the priority date? Could I apply for an O-1 visa to start working in the U.S. and then wait for the priority date while in the United States? Would getting an EB-1A make the O-1 application easier?

Alan Lee Esq answers,
An O-1 is a possibility to enter the US to work first and then wait for the priority date to become current. Although the O-1 visa is not strictly dual intent (allowing both immigrant and nonimmigrant intents), it falls within a gray area in which we have seen many visas issued at the US consulates even though immigrant petitions have been filed or approved. Kindly note that although EB-1A can be done through self-sponsorship, the O-1 require some form of organization sponsorship. The rules appear to be loosely interpreted currently on organization sponsorship even when the alien essentially owns the company doing the sponsorship.

1. I am self-employed during my OPT period. Will this affect my I-485?

A reader asks:
Some articles mention that if one has fewer than 180 days of unauthorized work after the last U.S. entry, they can still adjust status under 245(k). But in my case, I was on OPT and self-employed, which led to unauthorized employment. I later left the country, and when applying for H-1B, I marked “No” on the DS-160 question about unauthorized work and did not list that experience. The H-1B got approved. Now, when I apply for EB-2, if I disclose the unauthorized employment, will this trigger a 212 fraud issue? Is the risk high? Am I basically out of options?

Alan Lee, Esq. answers:
The DS 160 form does not contain a question on unauthorized employment. It only has a question, “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a U.S. visa?” Thus it does not appear that you made a specific misrepresentation to the question of unauthorized employment, especially if you doubted that your self-employment may have counted as unauthorized work at the time of making your visa application. Fraud or misrepresentation also requires an intentional misrepresentation of the truth. In this case, such is doubtful given that there is not a specific question on unauthorized employment on the DS-160 form. You are correct that §245K can forgive unauthorized work under 180 days, but has no impact on questions concerning fraud or misrepresentation. I doubt that the question of misrepresentation on your self-employment during OPT will be a deciding factor in your adjustment of status application.