1. Promotion with a new job title may require redoing PERM
A reader asks:
My company offered me a promotion from Senior Internal Auditor to Internal Audit Manager. The new position is 90% the same with an added 10% managerial responsibility. However, the attorney says I’ll need to redo the PERM and advised against changing positions. They also said the Internal Audit Manager role wouldn’t qualify for a green card because it requires 5 years’ experience and a Master’s degree. The job title for the new PERM would have to be Financial Manager, but the prevailing wage for that is at least $160K, which the company won’t pay. So, the promotion seems unlikely. My PD is March 2021 and hasn’t moved for nearly a year. Do I really need to redo PERM to accept the promotion while waiting for my priority date?
Alan Lee, Esq. answers:
From your set of facts that your priority date is in March 2021 and complaint concerning the wait being a year without movement, I assume that you have not yet filed the I-485 application which requires that the priority date be current. In such situation, you are not entitled to keep the entire case under the rubric that the new job is in a “same or similar” occupation to the one in the certified PERM. At this stage, you would only be entitled to keep the priority date, and as your attorney points out, you would have to reapply for PERM with all of the cautions that he has given you. The law only allows the use of “same or similar occupation” where the I-140 petition has been approved and I-485 pending for six months – not for situations in which the circumstances have changed prior to the I-485 application being filed. In the event that you actually meet to allow the timeframe for use of “same or similar occupation” to port your case, the question is whether USCIS will see that this is the “same or similar occupation” in which it will consider and compare the two positions to see whether the new occupation qualifies or is materially different.
2. Your entry and stay would have to be consistent with your declared intent
A reader asks:
If I am denied an H-1B visa while applying from abroad and get laid off during the visa check process, can I still go to the US? Can I go to the US to find a job, or do I need to find a job from abroad and apply for a visa again?
Alan Lee Esq. answers:
Whether you are able to go to the US after being denied for H-1B visa and being laid off during the visa check process depends upon whether you already have a non-canceled US visa, or are able to obtain one, or if you are visa exempt (Canadian national or from a country under the visa waiver program – ESTA). Your entry and stay would have to be consistent with your declared intent. It is highly doubtful that you would be allowed to enter the country for purposes of looking for a job although USCIS will allow job hunting as a reason for obtaining a change of status after losing a H-1B position in the US. We seriously doubt that US consulates would give a B visa for that purpose and explaining that as the purpose for entry to a Customs and Border Protection (CBP) officer at the port of entry would likely invite problems.
3. NIW petition or O-1 visa?
A reader asks:
I have studied for a master’s degree in the United States, applied for OPT, and worked with an O visa, that is, I have used F, O, and B visas. Now, I have I-140 for NIW and want to return to the United States. I will definitely be in the United States in the future, and I’m thinking of going there early to apply for EB-1. Which one is more suitable, F-1 or O-1? Will I be refused a visa in this case?
Alan Lee Esq. Answers:
Since you’ve previously worked in the U.S. under an O visa and already filed a National Interest Waiver (NIW) petition (which shows immigrant intent), an O-1 visa is more aligned with your profile. F-1 is a nonimmigrant visa that requires proof of nonimmigrant intent, which conflicts with your I-140 filing and clear long-term immigration goal. Applying for an F-1 has a higher risk of rejection due to immigrant intent concerns. O-1 while not a dual intent visa (allowing both nonimmigrant and immigrant intents) lies in a gray area in which we have seen consular approvals even while I-140 petitions have been filed or approved. The issuance is within the discretion of consular officers.
4. The use of advance parole does not invalidate your H-1B status
A reader asks:
I’ve had my combo card for half a year now, and I plan to return to China for the Spring Festival early next year. I heard that if I re-enter the U.S. using the combo card, my H-1B will automatically become invalid. Should I apply for an H-1B visa and use that to return to the U.S. in order to maintain my status? I’ve never left the U.S. since getting my H-1B.
Alan Lee, Esq. answers:
Besides our general warning that nonimmigrants in the US should not take unnecessary trips outside the US because of the present political climate against immigration and nonimmigrant students by this administration, recent events have shown that Chinese students especially will be heavily vetted when they travel and reenter the country. To your specific question, the use of advance parole does not invalidate your H-1B status under legacy INS policy, and you are allowed to work for the H-1B employer and apply for extension of H-1B status when your present H-1B petition begins to expire.
5. USCIS often issues the I-693 (medical) RFE months early
A reader asks:
I originally applied under EB-2 but later downgraded to EB-3. I received my combo card in May. EB-3’s Chart A hasn’t become current yet—still about a month to go—but I received a request for a medical RFE by email. Does this mean the case is in the final review stage? If I submit the medicals, will I get the green card without waiting for Chart A? Or does it still need to be current to issue the card? I have a feeling Chart A might move forward in November.
Alan Lee, Esq. answers:
USCIS often issues the I-693 (medical) RFE months early so your case is “ready to go.” They still may not approve the I-485 until your Final-Action Date (Chart A) is current. You simply upload the sealed I-693 now and wait; if Chart A becomes current, your case can hopefully be approved quickly.