Month: April 2026

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 26, 2026: 1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days 2. How can one successfully apply for an EB-1A visa?

1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days

A reader asks:
My company helped me file an EB-1A petition under Premium Processing (PP), but we subsequently received a Request for Evidence (RFE)—the deadline for our response is in May. Since the company is the petitioner, the preparation process for much of the documentation has been opaque to me. I feel that the law firm collaborating with the company is particularly unreliable and that the application they prepared is of very poor quality. However, they are unwilling to withdraw the petition and insist on preparing the RFE response themselves. I simply cannot bring myself to trust them. My question is: can I now file a new petition on my own (DIY)? In this new filing, I would act as the petitioner; I would personally draft the petition letter and compile the exhibits, which would presumably differ from the materials prepared by the company. I intend to use Premium Processing for this new filing as well. Consequently, the timelines for the two cases would overlap—essentially, one case would be pending an RFE response, while the other would be a brand-new submission. The company has refused to show me the actual application package they prepared; from start to finish, I merely provided them with certain supporting documents and recommendation letters. Therefore, I am confident that if I handle the filing myself, my petition letter and exhibits will definitely differ from the ones they wrote. Since the petitioner would be different, there would be distinct differences between the two cases. Would this be considered a “duplicate filing”? (Note: I already have a pending NIW petition, as I anticipated that the EB-1A petition filed by the company would likely be denied.)

Alan Lee, Esq. answers,
It appears that you have two balls in the air and you want to put up a third. This could prove confusing, but I cannot say that putting up a personal EB-1A petition for yourself under premium processing would not work if you are truly qualified for the category. Please note that paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days. Where a case is complicated, USCIS may well hold onto the case and begin adjudicating it in its good time. Afterwards, you would likely have to request back the premium processing fee as the agency has a history of not automatically refunding it if it does not reach the case within the time limit. Also that USCIS may reach a case within 15 business days, and that it would fulfill its obligation under premium processing by issuing a request for evidence or notice of intent to deny or approval or denial.

2. How can one successfully apply for an EB-1A visa?

A reader asks:
I hold both a bachelor’s degree and a Ph.D. from one of China’s top two universities, with a brief master’s degree program in continental Europe sandwiched in between. I currently work in the investment banking division of a securities firm, focusing on IPOs and M&A transactions; however, I have not published any academic papers or engaged in other similar scholarly activities. I am considering applying for an EB-1A (Extraordinary Ability) visa. Given my current profile and circumstances, do I have a realistic chance of success?

Alan Lee, Esq. answers,
Generally speaking, a person with your bare-bones fact pattern would not seem to be a great candidate for the EB-1A extraordinary alien category, and as you are aware, the current climate is not encouraging. We suggest that you look through all 10 criteria of the EB-1A category, and pick out at least three that you can say that you qualify under. Then you may wish to make an appointment with an immigration lawyer familiar with EB-1A filings and consult him or her with your portfolio or a detailed resume. Just from your facts, one cannot say definitively whether you could or could not qualify.

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 12, 2026: Someone would rarely ask for another EAD when he/she has one valid until 2030

Someone would rarely ask for another EAD when he/she has one valid until 2030

Reader asks:
My H-4 extension has been approved, but I received an RFE from USCIS for my H-4 EAD application. It says I already have an EAD valid until 2030 (this is the I-485 EAD I received a few weeks ago). They are asking why I am applying for another EAD (under the C29 H-4 category). I’m confused because the notice only gives me three options to choose from:

  1. The EAD card was lost or damaged.
  2. The information on the EAD card is incorrect and needs to be corrected;
  3. I want to withdraw this current application because I already have a valid EAD.

So, does having an I-485 EAD mean I can no longer apply for an H-4 EAD extension? Or did USCIS make a mistake by not recognizing that these are two different types of EADs? I want to write a letter to explain that this application is for the H-4 EAD because I don’t intend to use the I-485 EAD for now, and I don’t want to choose any of the three listed options. Is it okay to respond like this?

Mr. Alan Lee, Esq. answers,
We have seen situations in which individuals have held 2 EADs, but it is rare that someone would ask for another EAD when he or she has one valid until 2030. USCIS may be concerned about security (whether someone other than you could somehow use one of the cards) or if there is any problem with your I-485 application. Your explanation is probably as good a reason as any at the present and it will be up to USCIS whether it will issue the H-4 EAD.

IMMIGRATION NEWS THAT YOU CAN USE – PREDICTION ON SECOND ROUND OF H-1B SELECTIONS; PREVAILING WAGES LEVEL I-LEVEL IV SET TO LEAP UNDER NOTICE OF PROPOSED RULEMAKING; HABEAS CORPUS AND THE RIGHT TO BRING UP CONSTITUTIONAL ISSUES TO AN IMMIGRATION JUDGE.

As published in the Immigration Daily on April 10, 2026

As published in the World Journal Weekly on May 10, 2026, in Chinese

  1. Prediction on Second Round of H-1B Selections.

With the FY-2027 cap H-1B March selection completed, it appears from anecdotal evidence that the selection percentages as set out by USCIS in the weighted wage rule giving more opportunities (more lottery balls) to those organizations willing to pay beneficiaries on a higher wage level were incorrect. It had estimated odds for this year of level I – 15.29%, level II – 30.58%, level III – 45.87%, and level IV – 61.16%. (page 60948 of the Federal Register final rule, https://www.govinfo.gov/content/pkg/FR-2025-12-29/html/2025-23853.htm.) We believe that the final statistics will show higher percentages of approval. On the possibility of a second round of selections in July, we believe that there is a very distinct chance of this occurring. This depends upon whether many organizations actually go through with submitting H-1B petitions by June 30, 2026. On the one hand, there would appear to be more incentive for employers to file since they have already paid a $215 registration fee. On the other hand, some employers may have boxed themselves in with wages and SOC codes that they cannot realistically support. Also, it may well be that many organizations submitted H-1B registrations without fully taking into account or hoping that the $100,000 H-1B fee attached to those beneficiaries who are overseas or fail to successfully obtain a change of status to H-1B will be overturned by the courts. They may reconsider their commitment to file if there is no rule change. On the present status of the fee litigation, the District Court in Chamber of Commerce of the USA v. U.S. Department of Homeland Security, No. 1:25-cv-03675 (D.D.C. Dec. 23, 2025), upheld the fee and an appeal is currently in the DC Court of Appeals. The other two major cases, State of California v. Noem, 1-25cv-13829 (D.Mass.) and Global Nurse Force v. Trump, 4:25-cv-08454 (N.D.Cal.) remain pending.

  1. Prevailing Wages Level I-Level IV Set to Leap Under Notice of Proposed Rulemaking.

The proposed regulation, “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States”, Federal Register, vol. 91, No. 59 (3/27/26), https://www.federalregister.gov/documents/2026/03/27/2026-06017/improving-wage-protections-for-the-temporary-and-permanent-employment-of-certain-foreign-nationals  will raise prevailing wage levels I-IV excessively. Level I wages would move from the 17th percentile to the 34th percentile, level II from 34th to 52nd, level III from the 50th to 70th, and level IV from the 67th to the 88th. In practice, level I would be the most impacted with an approximate 33% jump in wages redefining entry-level somewhere closer to experienced/junior mid-level; level II will see an approximate 24% increase, level III 21%, and level IV 22%. Arguments against the proposal include DOL not sufficiently justifying why these specific percentile thresholds are appropriate; that the new wages based on the percentiles do not correspond to “prevailing wages” and in many cases exceed it; that it eliminates true entry-level wages; and promotes economic harms such as offshoring and reduced hiring by employers. Comments can be made electronically before May 26, 2026, to the Federal eRulemaking portal: https://www.regulations.gov. Commenters should identify the agency’s name and public docket number ETA-2026-0001, explain the reasons for any recommended changes, and reference the specific section and wording being addressed where possible.

  1. Habeas Corpus And The Right to Bring Up Constitutional Issues to an Immigration Judge.

Mahmoud Khalil, the permanent resident Columbia University protester who was seized and transported to Louisiana and later freed by the District Court in New Jersey through habeas corpus, had the habeas decision overturned in a Third Circuit panel decision on January 15, 2026 https://www.aclu.org/cases/khalil-v-trump?document=Order-Vacating-District-Court-Judgement. The decision is a huge blow against the use of habeas corpus petitions in immigration settings, the court saying that the INA does not allow immigrants to challenge by habeas corpus issues that can be reviewed in a petition for review at the circuit courts following disposition of the case by the immigration court and BIA. The exception is where the claims behind the habeas petition are “now or never” ones that would otherwise never come up for review. His legal team is now petitioning for en banc review and asking the new Third Circuit judge, Emil Bove, to recuse himself on grounds that that he was likely involved in decisions related to the case while at the Department of Justice. He was previously President Trump’s personal attorney handling matters including the hush money criminal case before Mr. Trump appointed him to the Department of Justice position and subsequently nominated him to the Third Circuit judgeship https://www.nytimes.com/2026/04/01/nyregion/mahmoud-khalil-columbia-appeal.html . As a Trump loyalist, he will likely refuse to recuse himself.

A pivotal issue brought up by the dissent in the panel decision concerned the ability of the circuit court in Khalil’s case to meaningfully look at  the claimed violation of his First Amendment free speech rights since the immigration judge (IJ) held that she lacked jurisdiction to rule on constitutional challenges and so there was no opportunity to develop the record on that issue, particularly as the IJ repeatedly  denied his requests to do so. As disclosed in the dissent, the most interesting part of this discussion arose in oral argument before the panel when the government for the first time produced a September 2025 policy memorandum that immigration judges “may generally consider arguments arising out of constitutional law.” https://www.justice.gov/eoir/media/1413276/dl?inline  Prior to the agency memo, it had always been taken for granted by both DHS attorneys and respondents that neither immigration judges nor BIA would take up constitutional questions.

So it would appear that this could be used by lawyers to ask IJs to actually rule on constitutional issues although most immigration judges as members of the executive branch would likely decline to do so. It also seems a pity that the memorandum was apparently used here merely to give cover to the government attorney arguing before the court.

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 5, 2026: If I am not selected in the H-1B lottery, can I apply for PERM?

If I am not selected in the H-1B lottery, can I apply for PERM?

Reader asks:
My husband found a job and the company helped apply for H-1B, but he hasn’t been selected in the lottery for three rounds. We are feeling hopeless.  I suddenly thought – can we skip the H-1B lottery and have the company file a PERM instead, while staying in the U.S.? My husband was born in South Korea, so there should be no backlog. Can someone on TN status directly file a PERM?

Mr. Alan Lee, Esq. answers,
Unfortunately, H-1B registration is not guaranteed, and it is not unusual that individuals can go multiple rounds and years in the H-1B lottery without being selected. It is best that individuals keep trying as we have seen persons who have failed multiple times finally be selected. If selected, H-1B holders can remain in the US for up to six years and perhaps even longer under such status. On your specific questions, the company can file a PERM application while you and your husband are staying in the US. Your husband would have to maintain legal non-immigrant status if he wishes to adjust status at the end of the process. A person on TN status can directly file for PERM, but that individual should be aware that travel outside the US even to Canada during the process may give him problems on entry  as as there is stricter vetting at the borders and TN unlike H1B requires non-immigrant intent.