March 2025 – Alan Lee

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 30, 2025：1. There are remedies for EB-1A rejections 2. Frequent EB-1A applications do not help approval rates 3. H-1B with 30 days left to apply for expedited processing 4. Contact the USCIS to check whether the I-485 is approved 5. Proof of non-immigrant intent is still required for I-140 applications under OPT 6. After I-140 is approved, you can enter the U.S. with an O-1 visa

1. There are remedies for EB-1A rejections

A reader asks:
I am in the field of new energy materials. When I submitted my professional immigration application a year ago, my citations were around 2,300. At that time, I was about to join a R2 elementary school as a teacher. I found a lawyer and submitted EB-1A and NIWNIW, but I only received the RFE reply recently. The lawyer mentioned 4 standards: published academic papers (36 SCI papers) and books and monographs (4 papers). The officer only recognized the review, saying that the professional information provided was incomplete, the author circulation was missing, or my work was not provided, etc. In fact, every report mentioned my name and school unit, and there were also links to published articles, which I highlighted. The officer did not recognize that my research work was original and important. I have 5 recommendation letters from professors in this field, which discussed my work in detail, and two recommendation letters were ignored. The lawyer said that the recommendation letters were not prepared enough. The last reply is the most outrageous. The officer ignored my 36 papers, some of which I co-authored as the first author of top publications, and some of which were recognized as high-impact books in interdisciplinary fields such as Nature Energy. The officer said in general that some of them were non-academic publications and that the audience of publications should be ordinary people. The lawyer said that he had never read such a thing in his 30 years of practice and felt very bad. I will prepare a response with my best efforts, but I also want to know what to do if the result is not good?

Alan Lee Esq. answers,
From your fact situation, it appears that you have received the RFE on the E13 1A petition. Unfortunately, USCIS examiners have been known to give difficulties in extraordinary alien cases, and in one instance, even denied such recognition to an applicant who had an Oscar award. I imagine that you and your attorney will work hard to respond to the RFE, and the EB1A petition can hopefully be approved. If the EB1A is denied, you can wait and see what happens with the NIW petition, or you can take up options of a motion to reconsider, motion to reopen if you have new evidence of achievements predating your priority date, appeal to the USCIS Administrative Appeals Office and then to the federal court if you wish to take it further, or sue directly in the federal court. Another option is to refile your petition, but note that you must inform USCIS on the Ii 40 petition that you have previously filed a petition.

2. Frequent EB-1A applications do not help approval rates

A reader asks:
I am a doctoral student and want to apply for EB-1A, but my case is weak. In order to avoid the discretion and bias of immigration officers on the same case, I have come up with a solution, which is to submit an application every 3 months so that the case can be sent to different immigration officers to increase the approval rate. Is this a reliable approach?

Alan Lee, Esq. answers,
Unfortunately, this does not sound like a good strategy. Besides USCIS being able to track all the cases which are being filed, page 3, part 4, question 8 of the I-140 petition asks “Has any immigrant visa petition ever been filed by or on behalf of this person?” Filing as many petitions as you contemplate (once every three months) is almost certain to attract unwelcome attention.

3. H-1B with 30 days left to apply for expedited processing

A reader asks:
I am currently working at a school, and my OPT will expire at the end of March 2025. Should I convert my OPT to H-1B first and then submit I-485, or should I submit I-485 and I-765 first and then use the new EAD, then convert to H-1B?

Alan Lee, Esq. answers,
The answer to your question appears to involve timing as this question is being answered when you have approximately 30 days of time left on your OPT. Any of your strategies is workable, but if you have not already begun, you will probably have a gap in your ability to work unless your choice is H-1B with premium processing. (I assume that the H-1B that you are contemplating will be with the school, which I further assume is an institution of higher education and cap-exempt – if not, your organization would have to put in a H-1B registration application for you which in 2025 is running from March 7, 2025 – March 24, 2025 and you would hopefully be selected). In applying for H-1B, work authorization is only given when the H-1B petition is approved. If faced with a short timeline, the school may have to opt for premium processing on form I-907 application for premium processing to allow you to continue your work without break. If not filing H-1B through a cap-exempt school, an H-1B approval would only take effect in October for you at the earliest.

Filing for -I485 adjustment of status with a request for employment authorization does not have an established timeline for the employment authorization document (EAD) to be approved although USCIS currently is adjudicating most requests based upon I-485 filings in about 60 days. It remains to be seen what the timeline will look like in the future in a Trump administration. On the other hand, premium processing with its $2,805 fee allows the H-1B petition to be reached for adjudication within 15 business days.

4. Contact the USCIS to check whether the I-485 is approved

A reader asks:
I submitted I-765, I-131, and I-485 applications 7 months ago, but nothing has been approved so far. In early July, a letter RFE came, requiring a medical examination. I did as required, but it has been more than a month, and there is still no news. It is so painful to wait, what should I do?

Alan Lee, Esq. answers,
For the 1-485, 1-131 advance parole, and 1-765 employment authorization applications, you can check the processing times of the office(s) having jurisdiction over them. You can visit the USCIS website page for processing times (Processing Times) and 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.

5. Proof of non-immigrant intent is still required for I-140 applications under OPT

A reader asks:
I am currently in F-1 OPT status. Before signing the offer with my current company, the recruiter assured me that I could start the green card application immediately after joining. However, the green card application was blocked by the law firm after joining, on the grounds that China’s waiting list is too long and I cannot get a green card (or AOS) in the next 18 months. Another reason given by the law firm is that the F-1 visa is a non-immigrant visa. If I submit an I-140 application, there may be risks in entering and leaving the country. My own research shows that during the Biden administration, I-140 applications are no longer considered to have an immigrant intent, and will only be considered at the I-485 stage. May I ask if it is feasible to start the green card application during the F-1 period?

Alan Lee, Esq. answers,
Many labor certification applications are filed during the time that students are in F-I OPT status. Our office works with a number of companies that are willing to begin the labor certification process, especially where the applicant is eligible for a STEM OPT extension. Kindly note that your assumption that the Ii 40 application is no longer considered to have an immigrant intent must be qualified. Any student still has to prove nonimmigrant intent, although the December 2023 guidance by DHS clarified that F and M sludents must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still he able to demonstrate their intention to depart after a temporary period of stay. The question of nonimmigrant intent in student cases is usually more important when the student goes overseas to interview the visa at an American consulate. En your case, the company and its immigration attorney appeared to have made a decision that it would be too risky to sponsor you for the green card given the amount of time you have left and the long backlog of China horn. Perhaps another organization would be willing to take more risk and believe that you might be eligible for additional periods of stay through some other means.

6. After I-140 is approved, you can enter the U.S. with an O-1 visa

A reader asked:
I am in China and have a question. If I successfully apply for I-140 outside the United States, can I use an O-1 visa to enter the United States to work and wait for the waiting period in the United States? I am not sure whether O-1 can have an immigrant-intentioned visa?

Alan Lee, Esq. answers,
The scenario under which you have an approved I-140 petition and apply to enter the US under O-1 to work while your priority date becomes current may be possible. The O-1 visa is not a dual intent visa, but appears to exist in the gray area in which applicants must be able to show that they have a residence in the home country. We have seen cases in which individuals with approved petitions in the US have been able to apply for O-1 visas successfully at US consulates. So the answer is “maybe”, and of course, any visa application at the US consulate or embassy should be truthful in disclosing that you have applied for an immigrant visa petition.

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 16, 2025：EB-1A approved, but may have problems coming to the US with a B visa

EB-1A approved, but may have problems coming to the US with a B visa

A reader asks:
I am in China and applied for EB-1A, which was approved in July 2023. I am struggling whether to go to US under B visa first and then apply for I-485 in the United States, or go through the interview at the Consulate General. Which method is faster?

Alan Lee, Esq. answers,
Traditionally consular processing was quicker than processing at USCIS since consular interviews could be arranged as soon as the priority date was current. However, there are now additional variables making it more challenging to predict which is faster. Because of the slowdown in consular processing and lack of officers incurred during the pandemic, many consular cases are not scheduled as soon as the priority dates are current. There is also a preference to schedule immediate relative family cases faster than employment-based cases. With USCIS, applicants previously could not file I-485 applications for permanent residence until the priority date became current. The situation was alleviated when the Department of State instituted Chart A (final action dates) and Chart B (dates for filing). Previously the priority date only related to a final action date. Applicants could now file I-485 applications before the final action date became current under Chart B (when USCIS states that Chart B can be used during the month) with the possibility that cases could be approved as soon as the Chart A priority date was reached. In the same manner as consular processing, however, cases are many times not adjudicated even then because of a lack of manpower or other reasons. Your situation is also unclear for other reasons – if you do not already have a B visa, there is a likelihood that it will not be approved since you have immigrant intent as shown by your approved I-140 petition. In the event that you manage to arrive under B visa, it is difficult to tell when the priority date under Chart B will become current to your date of July 2023. The current availability date of 1/1/23 has not moved since January 2024. You may also have the problem of figuring out how to maintain a valid status in the US if the priority date does not clear within the time that you are allowed to stay in the US under B status. Hope this helps.

Article: TRUMP IMMIGRATION MOVES AGAINST THOSE WITH HOPE AND STATUS

As published in the Immigration Daily on March 17, 2025

With a blizzard of immigration actions going far beyond a crackdown on criminal aliens, President Trump is exploding the hopes of those who voted for him thinking that he would only expel the criminal element of the immigrant population. If he obtains the $175 billion in budget funding for his immigration program included in the passed Senate resolution in February, he would have the monies required for mass deportation.

Not only are the undocumented at risk of removal, but also those who do not have permanent resident or US citizenship status as seen in the present actions of the administration. A small look at some recent actions of the administration shows that even those with forms of legal status have risk of being ensnared in Mr. Trump’s recent actions:

1. Social media screening is coming back in a big way in a Federal Register (March 5, 2025, Vol. 90, No. 42, pg. 11324) https://www.federalregister.gov/documents/2025/03/05/2025-03492/agency-information-collectio 60 day notice for comment promoting tighter vetting of applications by USCIS in fulfillment of Executive Order 14161, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” directing implementation of uniform vetting standards collection of information for rigorous vetting and screening of all grounds of inadmissibility or bases for the denial of immigration-related benefits. Social Media Identifier(s) on immigration forms and/or information collection systems are to be collected from certain populations of individuals on applications for immigration-related benefits for enhanced identity verification, vetting and national security screening and inspection.

This will delay the time for adjudications as USCIS officers and/or administrative staff will spend countless hours poring over applicants’ social media accounts. An idea of the immensity of such screening is USCIS’ estimate of the size of the populations to be screened in each application category – I-485 Application to Register Permanent Residence or Adjust Status, 1,060,585; I-131 Application for Travel Document, 1,073,059; N-400 Application for Naturalization 909,700; I-589 Application for Asylum and Withholding of Removal 203,379; I-751 Petition to Remove Conditions on Residence, 140,000; I-590 Registration for Classification As Refugee, 106,200; I-730 Refugee/Asylee Relative Petition 13,000; and I-829 Petition by Entrepreneur to Remove Conditions, 1010.

2. Enhanced vetting not only affects those requesting immigration benefits of USCIS in the US, but also nonimmigrant visa holders entering the country by US Customs and Border Protection inspectors. A recent article, “Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border,” by Dan Berger, Brian Halliday and Stephen Yale-Loehr Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border pointed to two recent refusals of entry into the US – one a H-1B computer scientist in which CBP called the employer contact on the H-1B petition who could not remember the details or knew that the person was flying that day with the result that the scientist received expedited removal; and the second a PhD engineering student from China who received a F-1 visa, and upon CBP finding that the resume submitted at the consulate was shortened from the longer version she had on her laptop, had her withdraw the request for admission and return to China to apply for a new F-1 visa stamp. The authors upon speaking with three levels of CBP officers learned that CBP has new instructions to vigorously scrutinize applicants for admission to the US.

So it appears that travel in and out of the US for nonimmigrant visa holders will be tinged with danger and nonimmigrants in the US may wish to take less frequent trips and, if on working statuses, coordinate international trips with their employers to ensure that the employer’s signatory on the petition refreshes himself or herself with the nonimmigrant’s responsibilities.

3. The new NTA policy announced by USCIS on February 28, 2025 in Policy Memorandum PM-602-0187, “Subject: Issuance of Notices to Appear (NTAs) in Cases Involving “Inadmissible and Deportable Aliens” Policy Memo_Template is a step back to the past in which unfavorable decisions by the agency to applicants who had no legal status to fall back on were usually accompanied by a notice to appear in the immigration court for removal proceedings. Other than for denied cases involving criminal offenses, fraud or misrepresentation, the memo says that “USCIS will issue a new NTA where, upon issuance of an unfavorable decision on a benefit request, the alien is not lawfully present in the United States.” For employment-based petitions, NTA’s will be issued to beneficiaries where the decision on the petition is unfavorable, the beneficiaries are not lawfully present in the US or otherwise removable; and the beneficiary is a signer on an I-129 petition for nonimmigrant worker such as E-1/E-2 treaty traders and treaty investors, H-1B beneficiary owners, and O-1 beneficiary owners.

Prosecutorial discretion to withhold issuing NTA’s is limited and “should only be exercised in very limited and compelling instances and on a case-by-case basis after considering all USCIS and DHS guidance, DHS’s enforcement priorities, the individual facts presented, and any DHS interests implicated…”

So this will seemingly make maintaining nonimmigrant status a better alternative than simply forgoing extensions of such in favor of applying for and receiving EAD’s (employment authorization documents) which by themselves do not confer status.

We are returning to a time in which interviews in the field offices of USCIS may turn out to be harrowing experiences once again. Questions on whether interviewees may be detained in their visits to the field offices may once again be prominent. Many legacy INS and USCIS officers have not wanted to make on the spot unfavorable decisions in the past for sake of their own safety and fear that physical confrontations might result. On the other hand, the new policy may bring back another past method of handling such situations with the involved officer asking the applicant to wait and calling for officers attached to ICE to come before stating the decision and having them detain the applicant – an enhanced the risk to the applicant if the field office also contained an ICE section.

4. Expedited removal for parole program participants and those under regular removal proceedings. The Trump directive on expedited removal as announced by Caleb Vitello, Acting Dir., ICE, 1/23/25, https://www.dhs.gov/sites/default/files/2025-01/25_0123_er-and-parole-guidance.pdf, is fairly sneaky in directing ICE officers to review and consider in exercising enforcement discretion whether to initiate expedited removal against those who would be subject to it (not in the US for two years) by terminating all regular removal proceedings and/or any active parole status, and look for those whose paroles were automatically ended under Trump’s memorandum [terminating the Cuban Haitian Nicaraguan Venezuelan parole program]. Even for those who have applied for asylum or plan to do so in a timely manner, the directive says that the expedited removal process includes asylum screening, which it says is sufficient to protect the reliance interest of these parties.

5. In an unrelased fast track removal memo circulated at ICE on February 18, the Trump administration is directing ICE officers to identify immigrants who can be rapidly removed from the US without a court hearing through expedited removal. The memo that has been reported by various sources including AILA, targets low hanging fruit, some categories of whom hold some form of status and others (arriving aliens) who may under certain circumstances be eligible for adjustment of status to permanent residence https://www.washingtonpost.com/immigration/2025/02/28/ice-expedited-removal-mass-deportation/; https://english.gijotina.com/ice-memo-details-how-officials-will-try-to-deport-more-than-1-million-migrants-migrants/; Reuters Releases Updated Guidance From ICE on Expedited Removal:

Persons previously released by CBP and have not applied for asylum who include paroled arriving aliens, aliens issued a CBP “notice to report” (NTR), and aliens processed for parole with alternative to detention (ATD) or parole with conditions (PWC).
Arriving aliens who showed up at a port of entry that CBP determined to be inadmissible and previously released as long as they were inadmissible because of fraud or willful misrepresentation or lack of valid immigration documents. To this category, the memo says that there is no time limit on the ability to process under expedited removal.
The memo further states that persons who won withholding of removal (proving fear of persecution or past persecution by satisfying a standard of probable rather than merely well-founded fear of persecution) should be considered for expulsion to another country.
Also that immigration officers should rearrest immigrants that they have had to release in the past because they could not deport them since their homelands refused to take them back with the memo saying that the administration has made significant gains in having those countries take them back and also taking into account the potential for third country removals.

Expedited removal as expanded under Mr. Trump targets people who have been here for two years or less in any part of the US. Previous rollback under the Biden administration allowed its use for individuals caught within 100 miles of the border and within two weeks of entry. For those arriving legally through ports of entry lacking immigration documents or having misrepresented themselves/arriving aliens, expedited removal has generally only been used at a time proximate to entry in the author’s understanding and experience although it has been more used against people coming in under visa waiver programs who legally give up their rights to a hearing in writing by entering under a 90 day visa waiver program instead of through visa.

This is just the beginning of President Trump’s four years in office, and the immigrant communities – even those with some form of legal status at present – can expect many more shocks in the future. Everyone other than permanent residents and US citizens should be careful about their immigration statuses, not take unnecessary travel risks, and consult legal counsel before taking any steps that could jeopardize their statuses.