1. If a PERM were to begin today, it might not be completed within 21 months
A reader asks:
I just received an email from my company stating that our PERM process is being temporarily suspended due to current market conditions, with no definite timeline for resumption. My Prevailing Wage Determination (PWD) has already been approved, and we are currently in the recruitment advertising phase—which began in March—so it is highly likely that we will be unable to proceed with the standard filing. My H-1B visa is set to “max out” (reach its six-year limit) in October of next year. When I initiated the green card process, the company agreed to sponsor me only under the EB-3 category, as EB-2 sponsorship is reserved exclusively for employees at the Senior Manager level or above. My employer is a global consulting firm. Currently, the business within my specific department remains stable, my individual performance is strong, and I am leading a small team. I never expected such an abrupt turn of events. Could you please offer any viable strategies or options I might consider?
Alan Lee, Esq. answers,
Under the circumstances where it appears that your H-1B max out is next October (21 months from the date of this answer), and you seem fairly certain that filing on schedule will be impossible due to the PERM processing being paused by the company with no clear restart date, you can either try to further discuss this with the company, or if truly dissatisfied, attempt to move on to another organization with the understanding that it will begin the PERM process for you as soon as possible. If a PERM labor certification application was to begin today, it is highly doubtful that it would be completed within 21 months even if everything went well. But perhaps with your company or another organization, you could make plans as to how you could cover the time gap in status under which you would not be covered by an H-1B approval. Good luck.
2. You would violate H-1B status if you worked with the EAD for another employer
A reader asks:
I used to think once I used my EAD, I could not return to H-1B. But ChatGPT told me that once I re-entered the US using the combo card, I would become a parolee and can work for my employer. If I lose my job, the 60-day H-1B grace period doesn’t apply. I can even collect unemployment benefits or work for another employer using EAD. And if I want to go back to H-1B, an employer just needs to file a transfer. So I can freely use EAD during I-485 pending and not worry about getting back on H-1B if I-485 is denied. Is this understanding correct?
Alan Lee, Esq. answers,
No, unfortunately your understanding is not correct as you would be in violation of H-1B status if you worked with the EAD for another employer. The USCIS guidance appears to allow H-1B holders to reenter the US under parole and then file for extension of H-1B status inside the US through the same employer. It does not contemplate free open market EAD employment and then being able to switch back to H-1B status inside the United States.
3. An individual self-petitions for the NIW, the case can continue even the individual has changed jobs.
A reader asks:
My National Interest Waiver (NIW) petition—which was sponsored by a previous employer—was approved. However, I subsequently changed jobs. Do I need to file a new I-140 petition now? I saw a post on LinkedIn claiming that one must re-file the petition independently in such cases. Could you please confirm whether this is true?
Alan Lee, Esq. answers,
Where a previous employer sponsored an approved NIW and the beneficiary changes jobs, a new I-140 petition must be filed. Where an individual self-petitions for the NIW, the case can continue even where the individual has changed jobs.
4. It has usually taken much time in the past for the agency to work on a returned case
A reader asks:
I applied for an EB-1A visa, and my I-140 petition has already been approved. I proceeded to the U.S. Consulate in Hong Kong to apply for my immigrant visa. In January, I attended my interview at the Hong Kong Consulate but was refused on the spot. My status was updated to “Refused,” and in March, it was updated to “Returned to NVC.” Does this constitute a Notice of Intent to Revoke (NOIR)?
Alan Lee, Esq. answers,
Where a US consulate updates case status to “Returned To NVC”, it means that the consulate has or will send your case back to USCIS. An Immigration officer will look over your case along with notes from the consulate and either reaffirm the decision or send you a notice of intent to revoke. It should be noted that these are low priority cases with USCIS, and it has usually taken much time in the past for the agency to work on a returned case. Good luck.