March 2026 – Alan Lee

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 29, 2026 1. Labor certification applications can be restarted at any time. 2. The H-1B extension petition can only be filed within six months of its expiration date. 3. EB-1A and EB-1B can be submitted simultaneously if the contents of one do not contradict the other

1. Labor certification applications can be restarted at any time.

A reader asks:
I was just informed today that the labor market test failed, so the PERM process will need to restart. I’ll talk to the lawyer later for more details. What are the common reasons for failing the labor market test? If I need to restart, do I have to wait 6 to 12 months? I’ve been at this company since graduating from university, and previously relocated to Canada for a year before returning to the U.S. this year, so the work experience used for the PERM comes from my time at the Canadian office.

Could the failed labor market test be related to that work experience? Or could it be related to the job location? For example, are there differences between the San Francisco Bay Area and New York in terms of passing the labor market test? I’m considering moving to New York next year. If the PERM location is New York, would it be easier to get approved?

Alan Lee, Esq. answers,
I am sorry to hear that your labor certification market test failed. Common reasons are typographical errors (the PERM process is pretty strict on errors on the forms); the recruitment may not have been done correctly; there may have been able, willing, qualified, and available US workers that the employer was not able to screen out for valid job related reasons; the applicant’s qualifications may not have matched what was required on the labor certification application, etc. Generally speaking, a labor certification application can be begun again immediately and you generally do not have to wait 6 months or more to begin a new labor certification. If the labor certification requirements were only matched by you in the same company’s Canadian operation, such could be a reason for having a problem with the Department of Labor as experience gained in the same company should be in a position which is substantially different from the position being offered. On the question of San Francisco or New York, the question may be whether there are more qualified candidates who would be interested in a job like yours in San Francisco or New York. That goes to advertising the position and the company screening the candidates. If the position is remote, the test would be national rather than in Just the local market.

2. The H-1B extension petition can only be filed within six months of its expiration date.

A reader asks:
I checked the Department of Labor website, and the average PERM wait time is 17 months, so it’s unlikely I’ll get it within 12 months. I have two questions:

Based on my situation, can I apply for a 1-year H-1B extension before it expires? If so, when is the earliest I can apply?
Can recapture time be filed separately, or must it be submitted along with the H-1B extension?

Can I file a new H-1B extension before May 2026? I was outside the U.S. for almost two months during my H-1B six-year period, so those two months should push my H-1B expiry date further. My H-1B expires in May 2026, and my PERM was filed in May 2025 (PD). Although my PERM was filed within 365 days before my H-1B maxes out, it was only by one day. I thought I could apply for a one-year extension in May 2026 just because the PERM was filed 365 days before. But when I reread the AC21 rule, it seems I might not be eligible until 365 days after the PERM filing date, which would be May 2026. If that’s true, I am worried I might fall out of status. What should I do?

Alan Lee, Esq. answers,
Based on your situation, you can apply for a one-year H-1B extension before it expires. The beginning of the requested time must be after the labor certification application has gone 365 days. The H-1B extension petition can only be filed within six months of its expiration date. You can also file to recapture time separately, but that would have to be in the form of an H-1B extension petition.

3. EB-1A and EB-1B can be submitted simultaneously if the contents of one do not contradict the other

A reader asks:
I have prepared all the materials and drafted my I-140 petition letter for EB-1A. I originally wanted to go through my employer’s EB-1B petition, as it seemed more stable. However, my company’s law firm is moving too slowly. Should I file EB-1A on my own first? Can EB-1A and EB-1B be filed simultaneously?

Alan Lee, Esq. answers,
Both EB-1A and EB-1B can be filed simultaneously, but the contents of one cannot contradict the other. If you wish to file the EB-1A petition on your own, please ensure that it will be consistent with the claims made on the EB-1B petition.

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 8, 2026 1. Under the new weighted wage rule, the chances of being selected are higher if you have a good wage offer 2. Received an RFE for the medical report

1. Under the new weighted wage rule, the chances of being selected are higher if you have a good wage offer

A reader asks:
I have applied for the H-1B visa three times and haven’t been selected. This is my fourth attempt. I have been in the United States for 6 years and have renewed my TN visa several times. Currently, I am a graduate student in Canada, so I can only apply for the undergraduate H-1B. However, I am studying OMSCS on weekends, and I can apply for the Master’s Cap next year. Last month, I just renewed my TN visa, and the next renewal is due at the end of 2028. This gives me three more chances in the H-1B lottery. I’d like to ask, what are the chances of me getting selected in the next three years? It would be really frustrating if I don’t get selected after six attempts.

Alan Lee, Esq. answers,
Under the new weighted wage rule, the chances of being selected are higher if you have a good wage offer. Assuming that the weighted wage rule is in place for this year’s H-1B Cap Registration, the higher the level of wage according to the Department of Labor (DOL) OES system, the better the chances are of being selected. DOL divides wages into four levels, and USCIS has conveniently taken advantage of the system in postulating that wages in level I get one ping-pong ball in the lottery, level II gets two balls, level III three balls, and level IV four balls. As you have been in the US for six years and renewed your TN Visa several times, you more than likely have a wage that fits within level III or level IV and have a good possibility of being selected.

2. Received an RFE for the medical report

A reader asks:
I received an RFE today asking for my medical examination report. However, I had already included the sealed medical report when I initially submitted my I-485 application. I called USCIS to inquire, but I was unable to reach a live agent. If my medical report was lost, can I ask my doctor to issue a new one?

Alan Lee, Esq. answers,
We find that in such situations where one cannot obtain an answer from USCIS, the best thing to do is to give another medical. If the medical is still valid, you can possibly go back to the physician or clinic and ask for a new medical report. You should ensure that you read all the rules concerning the validity of medicals before you take this route. Submission of an incorrect medical in response to a request for evidence would lead to denial.

Article: PERSONS ADMITTED TO U.S. AS REFUGEES DO NOT DESERVE THIS TREATMENT

As published in the Immigration Daily on March 3, 2026

What is a refugee? A person fleeing persecution. If coming to the US, a person who has been vetted constantly over a long period of time and when finally admitted, welcomed to the country and sponsored by private organizations to become acclimated to be a productive member of society.

So it was shocking to read the horror story inflicted by ICE on a refugee who had done all the right things since being admitted to this country. As reported in the January 29, 2026, New York Times article, “They Had Done Everything Right. ICE Detained Them Anyway,” https://www.nytimes.com/2026/01/26/us/politics/ice-minnesota-refugees.html, a refugee Eritrean single mother of three in St. Paul, Selamawit Mehari, was taken from her apartment by ICE in the presence of her 13-year-old son and an older daughter who produced papers proving their mother was in the US lawfully, but they took her away anyway. The next day, chained at the wrists, waist and ankles, the mother was hustled off on a plane to a detention center in Texas. She spent five days in custody. Before Texas, she was told by ICE in Minnesota that she would be transferred to Texas and deported and whether she wanted to take her kids with her. An officer explained that she had been detained because she had not adjusted her status and her case would be reassessed. In Texas, she was given prison garments, rubber slippers and locked in a frigid room with other women with mattresses on the floor and thin metallic sheets to huddle under. She lost track of time. At some point, she was questioned for three hours with an interpreter on the line. The questions were the same questions that she had answered when she was approved to come to the US as a refugee. At the end of five days, she was released along with other refugees without money or identification and had to make her way from Texas back to Minnesota. Later that day, the family learned that her green card had been approved. The day after release, she still did not have her documents or her favorite gold chain which had been confiscated (at the price of gold these days, one hopes that ICE returned the chain).

Further shocking in the article were assertions that more than 100 refugees with no criminal records from about a dozen countries had been arrested in Minnesota by immigration agents in recent weeks and flown to detention centers in Texas for interviews.

And yet all became clear in a February 18, 2026, submission by the government to Judge John R. Tunheim of US District Court in Minnesota in the case of UHA v. Bondi, 26-CV-417-J RT-DLM containing a same-day USCIS/ICE memo, “Detention of Refugees Who Have Failed to Adjust to Lawful Permanent Resident Status” Feb 18 USCIS ICE Chamorro Memo.pdf – Google Drive, outlining how any refugee who had lived in the US for at least one year and not yet acquired permanent resident status could be arrested and detained by DHS.

The memo cites authority under the refugee adjustment statute, INA §209 (a) (1), that unadjusted refugees return or be returned to DHS custody for inspection and examination for admission to the US – that refugees may be considered to have voluntarily returned to custody by submitting an application to adjust status and appearing at scheduled interviews or appointments pertaining to their adjustment of status application – but if a refugee does not voluntarily return at the one-year mark, the statute provides that the alien shall be returned to DHS custody requiring DHS to locate, arrest, and take the alien into custody (page 3).

The statute clearly contemplates a process under which a refugee who has not acquired permanent resident status through other means and has been physically present in the US for at least one year should file for adjustment of status to permanent residence. The memo itself acknowledges filing to adjust status and appearing at scheduled interviews or appointments as compliance with the requirement of voluntarily returning to custody. The statute does not contemplate detention under such circumstances.

So the standard way in which refugees “return” is through applying for adjustment of status. However, they are not allowed to apply for adjustment of status until one year has passed since their admission as refugee. 8 CFR 209.1. On application, the average time for adjudication on adjustment of status is 12 months according to USCIS current processing times. https://egov.uscis.gov/processing-times/. Is an adjustment applicant protected from detention during the waiting period? Apparently not, if the similar shanghaiings of Ms. Mehari and three other refugees mentioned in the New York Times article who had already applied to adjust status are examples.

How vetted are refugees before coming to the country? Heavily. The US Refugee Admissions Program (USRAP) includes biometric and biographic checks occurring at multiple stages throughout the process, including at the time of the preliminary resettlement support center interview, before applicants’ departure to the US, and on arrival in the US at the port of entry. Among the various checks are the Department of State Consular Lookout and Support System (CLASS) during prescreening by the resettlement support center including name checks on the applicant’s primary names as well as on any variations. Interagency checks vet applicants through biographic data, including names, dates of birth, and other data points of all refugee applicants within designated age ranges. Before or at the time of USCIS interview, biometric checks are initiated which include FBI fingerprint check through next-generation identification, DHS automated biometric identification system (IDENT), and Department of Defense biometric record check. Applicants then go through a USCIS refugee interview in which highly trained USCIS officers conduct extensive in-person, overseas interviews with all refugee applicants crosschecking many lines of inquiry and developing lines of questioning. National security concerns are handled under the USCIS Controlled Application Review and Resolution Process (CARRP) and enhanced review on certain refugee cases is done by the USCIS Fraud Detection and National Security Directorate (FDNS). Prior to flying to the US, applicants are further subject to Customs and Border Protection (CBP) vetting and inspection before being admitted to the country. https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees/refugee-processing-and-security-screening

So these are individuals who should be given the presumption of not being threats against the interests of the United States. If the memo was due to the actions of Rahmanullah Lakanwal, a 29-year-old Afghan national accused of shooting two National Guard members in Washington, D.C in November 2025, the memo should be withdrawn because the circumstances of his reported case do not indicate that Mr. Lakanwal’s entry into the country was based on anything but the truth or that he was a secret sympathizer with America’s enemies. The known facts are that he helped the CIA in Afghanistan in an elite counterterrorism Zero Unit; was airlifted to the US under humanitarian parole in “Operation Allies Welcome” the month after the US military withdrew from Afghanistan; applied for and was granted asylum under the Trump administration in April 2025; and was reported to be struggling with psychological and economic problems, frustration and depression. A caseworker said that she personally believed that he was suffering from both PTSD from his work with the US military and possibly manic-depressive, mostly depressive. National Guard shooter’s social posts, messages reveal turmoil – The Washington Post.

The memo states that refugees may voluntarily appear for inspection by showing up in an immigration office or complying with scheduled appointments, yet this writer has not read or heard of USCIS sending out appointments for refugees to appear directly after one year of their admissions – neither has he heard that refugees can just appear at a USCIS office without appointment. Security guards at federal buildings typically turn away those without appointments, and even if making it past security, immigration officers usually do not have time or the means to accommodate those without appointments.

The nation should not be stigmatizing, detaining, attempting to deport, and transporting refugees to distant states in wretched conditions as this is treatment not even meted out to the worst criminals or suspected foreign agents. The memo appears to have only been contrived to terrorize the refugee community and to discourage their further legal stay in this country. It should be immediately withdrawn.

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 1, 2026 1. The main benefit of switching from H-4 employment to H-1B is that you would not be dependent upon your spouse 2. EB-1A applications do not require Supplement J form 3. Incorrect occupation code in the State of Occupation Certificate (SOC) is not a basis to revoke an I-140 approval 4. Filing an NIW application is considered to have applied for an immigrant visa

1. The main benefit of switching from H-4 employment to H-1B is that you would not be dependent upon your spouse

A reader asks:
I graduated with a master’s program in 2022 but did not get selected in the 2023 and 2024 H-1B lotteries. Since I only have one chance left and my spouse’s I-140 has already been obtained, I applied for an H-4 and recently received the H-4 EAD. Unexpectedly, my company has now offered to sponsor my H-1B and asked if I am interested. This is a pleasant surprise. For two reasons, I want the company to sponsor me. First, the H-4 work authorization rules may change in the next four years; second, I am concerned about potential gaps when ending my H-4 status in 3 years. I also have some concerns: If I don’t get selected in the 2025 H-1B lottery, will it affect my H-4 EAD? As long as my H-4 EAD remains valid, can I continue entering the lottery every year? Are there any other advantages or disadvantages of switching from H-4 to H-1B?

Alan Lee, Esq. answers,
If those are your concerns with work authorization under the H-4 category, they should be alleviated by the fact that the Supreme Court recently refused to take up a challenge to the DC circuit decision protecting the right of H-4 dependents to work where qualified under the regulation. Please note a recent change, however, that the automatic extension rule for timing filed EAD renewals has been eliminated and that extensions should be filed as soon as possible (up to 180 days before the expiration date). On your concerns, being selected in the H-1B lottery has no effect upon H-4 EAD; you can continue entering the lottery every year and it would be best to keep legal status to avoid the possible imposing of a $100,000 fee if you are selected and a company decides to sponsor you for the H-1B petition; and the main benefit of switching from H-4 employment to H-1B is that this would now be your case, and you would not be dependent upon your spouse to maintain his or her H-1B status.

2. EB-1A applications do not require Supplement J form

A reader asks:
I filed my I-485 in November 2025, based on an EB-1A approved I-140. However, I was laid off by my company at the end of November 2025. In the past month or so since the layoff, I’ve been looking for a job, but because I don’t have a green card or work permit, I haven’t made much progress. I was thinking of waiting until I get my green card or work permit before looking for a job again. However, today I received a Request for Initial Evidence letter from the USCIS, asking me to submit Form Supplement J. My lawyer previously said that EB-1A or NIW cases don’t require submitting Form Supplement J. I am currently unemployed, how should I handle this?

Alan Lee, Esq. answers,
Your attorney is correct that Supplement J is not required for EB-1A filings. You should follow your attorney’s advice. The language in the I-485J instructions is the following:

NOTE: Individuals seeking or granted a National Interest Waiver of the job offer requirement and individuals seeking or granted classification as an alien of extraordinary ability under INA section 203(b)(1)(A) do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer, individuals seeking or granted classification as an alien of extraordinary ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J when filing Form I-485 or to request job portability under INA section 204(j).

3. Incorrect occupation code in the State of Occupation Certificate (SOC) is not a basis to revoke an I-140 approval

A reader asks:
I’m preparing to file my I-485, and I just discovered that my I-140 was approved several years ago. The SOC code on the I-140 approval notice is incorrect; it should be 151132, but the notice shows 111132. I don’t know if USCIS made a mistake or if the law firm made a mistake in the application. The worst part is, the SOC code 111132 doesn’t even exist. How should I proceed? If USCIS made the mistake, can I simultaneously file the I-485 and request a correction to the I-140? If the law firm made the mistake in the application, how should I handle this?

Alan Lee, Esq. answers,
I believe that if you have the I-797 approval sheet, you can move forward with filing the I-485. Whether it was your attorney’s or USCIS’s error with the SOC code, that would likely be considered an error of little consequence. If USCIS wanted to check the record, it could open theI-140 petition file and take whatever action that it deems appropriate. Having a wrong SOC code on the approval sheet is not a basis to revoke an I-140 approval.

4. Filing an NIW application is considered to have applied for an immigrant visa

A reader asks:
I am a STEM PhD student, and my seniors are applying for NIW (National Interest Waiver) or EB-1 (Outstanding Talent) because they are about to graduate. Many people suggest that I use NIW to apply for a green card and occupy a priority date. I have published 7 articles and have dozens of citations, but my F-1 visa has expired, and I need to renew it abroad. My question: Will submitting an NIW application affect my future F-1 renewal or entry into the United States?

Alan Lee, Esq. answers,
A F-1 student visa applicant must show nonimmigrant intent and the DS-160 visa application form asks whether you have applied for an immigrant visa petition. You must answer in the affirmative if you have already applied for an NIW I-140 petition. Otherwise, you may be deemed to have committed fraud or misrepresentation in the application. A consular officer will consider the factor of your having applied for an immigrant visa petition in his or her decision of whether to allow renewal of the F-1 visa.