Year: 2025

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.

1. Under most circumstances, a new PERM filing must be made when the position changes

A reader asks:
I am on an H-1B visa. I feel that I have been in a rut in my current position for many years and have reached my career ceiling. I want to switch to a different career path for a fresh start. My company now has an open position at the same level as my current one but with different job responsibilities. My current role involves managing a department at the headquarters and its subordinate branches. The open position would be as the general manager of a subsidiary, overseeing all operations and department managers there, but only a small portion (20%) aligns with my current job responsibilities. I have an MBA and feel qualified for this role, which seems like a good opportunity. However, my green card application PERM was filed based on my current position. If I switch to this internal role, which is similar but not identical to my PERM application, would I need to refile for PERM?

Alan Lee Esq. answers,
Under most circumstances, a new PERM filing must be made when the position changes. The exception is when the I-140 petition is approved and circumstances have changed after the I-485 adjustment of status application has been filed and 180 days have elapsed since that time. If the circumstance is a change of employment to a position which is in the same or similar occupation, both the PERM and I-140 petition can be kept and the adjustment of status application continue. That is the AC-21 portability law allowing a “same or similar” job switch. If that fits your situation, you may be able to port your case as both positions as described appear to be managerial, and it would be up to the company and its representative to bring out the most convincing arguments to USCIS that the job is in a similar occupation perhaps by arguing that the roles are in the same occupational classification; or that job duties and the SOC code are similar, etc.

2. It is not necessary after extending the H-1B status for you to leave the US and obtain a visa in your passport

A reader asks:
I applied for EB-3 professional immigration. After submitting I-485, the priority date retrogressed, so EB3 is no longer current. My Priority Date is May 2021. The current H-1B stamp will expire in three months. Should I go to Canada or somewhere like that to renew it early next year?

Alan Lee Esq. answers,
It is not necessary after extending the H-1B status for you to leave the US and obtain the visa in the passport. The visa is only for travel purposes. Alternatively, you could also file for advance parole if you need to travel (currently takes about 6+ months to process) since you have already filed for adjustment of status to permanent residence. If you do decide that you wish to travel under H-1B status, you should check the consular post that you wish to visit to see whether they will entertain third country nationals at the US consular post, and make sure that you have all your proper documentation according to the consular checklist. Please note that unless you have advance parole, you would not be allowed to return to the US without obtaining the H-1B visa in your passport.

1. Filing fee payment was processed. You can email USCIS if no receipt after 30 calendar days

A reader asks:
I recently applied for NIW from abroad. I can see that the $700 fee has been deducted, but I still haven’t received my receipt number. Today I asked Emma, provided my personal info, and they couldn’t locate my case—even though it’s been over a week since the payment was processed. How long does it usually take before Emma can provide the receipt number?

 Alan Lee, Esq. answers:
A lockbox can take 10–30 calendar days to cash the payment, assign the IOE/LIN/SRC/WAC receipt number, and push it into USCIS systems that Emma reads. One week is early; check again after another week. If you still have nothing at 30 days, then you can email the lockbox support address on the filing location webpage.

2. For EB-1B, interviewers will ask about employment

A reader asks:
I applied for I-140 last September and it was approved, my priority date was in December, and I did fingerprints in February this year. I recently checked the status and saw that my case is now in the interview stage.  How should I prepare the materials for an EB-1B family interview? What questions are usually asked during the interview?

Alan Lee Esq. answers,
For EB-1B (outstanding professor or researcher), interviews are generally employment-focused but also confirm the legitimacy of family members included. Prepare:

• Employment documents: job offer letter confirming role, CV, portfolio if you have one, recent accomplishments.
• Evidence of accomplishments in your field – if portable, bring some originals.
• Family documents: marriage certificate, children’s birth certificates, photos, joint bank accounts, etc.

Interview questions may include:

• Details of your job and role
• Proof of bona fide marriage/family (if applicable)
• Memberships in organizations.
• Social media postings.
• All relevant questions on form DS-260.

Good luck with your interview.

 

1. You are applying for US immigration, which may be a bar to your utilizing the TN visa

A reader asks:
I came to the U.S. last year on an L-1 visa. Due to poor economic conditions, the company hasn’t started my PERM process, and I didn’t get picked in the H-1B lottery. The EB-2 queue is also very long. Even if I eventually get H-1B and PERM, getting the green card still seems far off. So I’m considering this: after filing I-140 (either via NIW or whenever the company files PERM), I might go work in Canada and get citizenship there during the green card wait. Later, I could return to the U.S. on a TN visa and complete the green card process—assuming I find a job in the U.S. again. Compared to staying in the U.S. to wait, what are the downsides of this plan?

Alan Lee, Esq. answers:
I assume from your fact situation that you are in the US under L-1B rather than L-1A, the latter of which would afford you faster processing time under the EB-1C category associated with intracompany transferee managers and executives. That being said, your plan has a drawback that TN is a visa requiring nonimmigrant intent. The fact that you are applying for US immigration may be a bar to your utilizing the TN visa. Better situations are perhaps either remaining in the US during the time of the PERM or NIW and associated waiting times or remaining in Canada until you can be finally interviewed at the American Consulate in Montréal for an immigrant visa. Being in Canada has advantages as many people consider Canadian permanent residence or citizenship to be a safety net and your income can continue during the time of your wait.

2. Utilizing a start-up company for a green card may be a risk

A reader asks:
I currently work for a mid-sized company on H-1B and will max out in about two years. I once tried for NIW but was unfortunately denied. I recently got a verbal offer from a startup, and they promised green card processing starting Day 1. I’m now struggling with the decision—should I take the offer?

Alan Lee, Esq. answers:
Some considerations for jumping could include the following:

1. Funding runway & survival odds of the start-up.
2. Job’s ability to pass PERM (duties, requirements, your qualifications, correct prevailing wage, ability-to-pay proofs, etc.).
3. Timing: you and the company may have a dilemma with only 24 months of H-1B time left, and it would require a concerted effort on the part of everyone to ensure that you do not run out of time before your 6-year H-1B max-out. With the time required to formulate the application along with periods of time to obtain a prevailing wage determination, and conduct the recruitment prior to filing, it is highly possible that without diligent attention to your case, you would not have the requisite 365 days after PERM filing to qualify for an extension of the H-1B visa.

You may wish to think about these factors to see whether the start-up fits before making the move.

3. Will using advance parole invalidate my H-1B?

A reader asks:
I’m currently in China, and my H-1B extension is under administrative processing (check). Can I just abandon waiting for the check and re-enter the U.S. using Advance Parole? Once in the U.S., can I continue working for my H-1B employer? Or will using AP invalidate my H-1B?

Alan Lee, Esq. answers:
If an H-1B holder like you travels to Canada for visa stamping and the case is placed on administrative hold, he or she would typically need to wait for the visa approval before reentering the U.S. However, as you have a pending adjustment of status application and an approved advance parole document, you may be able to abandon the visa stamping process and reenter the U.S. using advance parole instead.

Upon reentry with advance parole, you should be admitted as a parolee, rather than in H-1B status. This means according to legacy INS policy that you should be able to continue working in the U.S. but would no longer technically hold H-1B status unless you later file for an H-1B extension or transfer and have it approved.

4. One case should be withdrawn immediately when a green card is finally granted in either queue.

A reader asks:
In late October last year, my husband filed I-485, I-131, and I-765 and included me as a dependent. His PD is December 2017. This week, the immigration attorney from my company informed me that my case is now current as well. My PD is February 2018, and I can now file. I personally prefer to submit a separate I-485 and add my husband as a dependent as a backup. But is this allowed? Would doing this delay the progress of our green card applications?

Alan Lee, Esq. answers:
You may file your own I-485 as principal (PD 02/2018) even though you are already a derivative on your husband’s case. USCIS does not disallow multiple adjustment of status filings. Processing times are independent; one case should be withdrawn immediately when a green card is finally granted in either queue.