Month: May 2026

1. You recently changed jobs, and you may wish to push the company to begin your PERM application as soon as possible

A reader asks:
I recently changed jobs, and my immigration application’s priority date (PD) is early January 2023, and Chart B is about one year from becoming current. Now, PERM seems hard to process at the company, and the default path is NIW. I only have a master’s degree and nothing else, just 5+ years of experience in AI (Artificial Intelligence) and ML(Machine Learning), and my current position is also in the MLE (Machine Learning Engineer) field. However, my lawyer said that the risk of expedited processing is significantly higher.   The company is likely to support both PERM & EB2 – NIW. I feel NIW-EB2 approval odds are already low. If my first NIW application is denied, should I immediately push to start PERM?

Alan Lee, Esq. answers,

I assume from your fact pattern that you already have an approved I-140 petition with 2023 priority date from your prior job. As you are acknowledging the difficulties of the NIW petition and your lawyer is telling you that the risk of expedited processing is significantly higher, that shows a lack of confidence in both of you in the merits of the NIW case. As such, unless there are factors of which I am not aware, you may wish to push the company to begin your PERM application as soon as possible and not wait until the NIW is denied.

2. I submitted my I-485 application recently and was laid off today. What should I do now?

A reader asks:
I was laid off today; at least the suspense is over. I submitted my I-485 application this January, and there are less than three months left before the 180-day mark. Our team just had a massive layoff, cutting half the headcount in half, and I was one of those let go. I have no news on the green card application, and haven’t even received my I-765 or EAD yet. I switched to this company and started a new PERM, filing the I-140 and I-485 concurrently, both have been pending for under 180 days. My 6-year H-1B period is used up and I can now renew only year by year.  I’ve heard that in this situation a new employer can’t keep extending the H-1b and can only wait for the green card or EAD to be approved.  What should I do now? Could I negotiate with the company to pay out the severance gradually through payroll each month, so that if USCIS interviews me, I can show pay stubs and pretend I’m still on the job?

Alan Lee, Esq. answers,
Unfortunately, where the I-140 petition has not even been approved and an individual loses the position with three months to go before the 180 day mark, we cannot state that the matter can be salvaged, as the employer clearly has no intent any longer to offer a permanent full-time position. You say in your fact pattern that you switched to this company and started a new PERM, and that raises a question as to whether you already have an I-140 approval from a prior employer. If so, you may be able to use that once with a new employer to gain a year with a new H-1B while contemplating your next steps.

1. If the NIW was company-sponsored, losing your position may have more serious consequences

A reader asks:
I recently filed my I-485 application, but my company’s business operations have become somewhat unstable. I am concerned that potential unemployment might negatively impact my I-485 case. My question is: if my I-485 application is based on a National Interest Waiver (NIW) petition, am I permitted to be unemployed while the application is pending?

Alan Lee, Esq. answers,
Assuming that the NIW is through self-petition, losing the job in the I-485 stage may not tremendously affect the application although you may still have to show that you remain committed to the type of work upon which the NIW petition is based. If the NIW was company-sponsored, losing your position may have more serious consequences although you may still be able to port your case to a same or similar position if the I-140 has been approved and the I-485 application pends for 180 days or more.

1. Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas

A reader asks:
A friend’s I-485 is currently pending, but already received both EAD and I-131 (separate cards), and is just waiting for his priority date to become current. He is currently working on an O-1 visa (without a visa stamp due to change of status within the U.S.) and recently got selected for H-1B.  His lawyer said he must change to H-1B status in October and only then can he travel abroad for stamping.  If he leaves the U.S. before October while still on O-1, will USCIS consider that as abandoning the I-485? Even with advance parole? Also, they he cannot travel on O-1 before October, can he go out after October, get the H-1B visa and return using it?  Would that invalidate the I-485?

Mr. Alan Lee, Esq. answers,
Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas, an applicant must change status in the US prior to going outside the US to escape paying the fee. That is why your lawyer is insisting that you remain in the US until October because that is when the change of status becomes effective. If afterwards you leave the US, such would not be considered an abandonment of the I485 since H1B holders can leave and return to the US during the pendency of I485 applications. Your friend could also leave under advance parole, and that would not invalidate the I485 application. If your friend leaves the US before October while still on O-1, USCIS would consider that as abandoning the I485 if attempting to come back in on the O-1 petition.

2. You can only file I-485 straightaway if both the job location and the legal entity are unchanged

A reader asks:
Because the PERM labor certification for my new company has been significantly delayed, yet my Priority Date (PD) is currently “current” (available), I recently reached out to my previous employer and received a job offer. However, the work location has changed (moving from San Francisco to New York). May I ask: under these circumstances, can I use my original I-140 petition to directly file my I-485 application? I understand that the prerequisite for directly filing an I-485 based on a previous petition is typically that both the work location and the legal entity (employer) remain the same. Is it possible to directly file an I-485 if the work location has changed, but the legal entity remains the same?

Alan Lee, Esq. answers,
Unfortunately, what most people say is correct – that you can only file straightaway if both the job location and the legal entity are unchanged. Perhaps your former employer is still able to offer you a position in San Francisco. If so, it would declare on form I-485 J supplement, “Confirmation of Valid Job Offer or Request for Job Portability under INA Section 204 (J)” that it has an existing valid job offer for you in San Francisco. If you work for the company in San Francisco for a period of time after obtaining permanent residence and the company at a later point decides to transfer you to New York, that is another story.