1. I-485 has been submitted before being layoff, can apply for form I-765
A reader asks:
I am in the central part of the country and have encountered layoffs. My current situation is that H-1B expires on July 30. RD is 173 days as of July 30th. It’s a bit hopeless to find a job in the next few days to renew the H-1B. I-485 has been submitted, but it has not been completed for 180 days. Some people say that as long as I am not scheduled for a green card interview during this period, I shall be safe. Is that so? Can I transfer into an F-1 and wait for green card? Or do I need to change jobs? or hope that my green card will be approved on July 30? Asked Emma, said my case was in NBC for more information. PD is September 2019 and it is already current. If I find a job, do I need to submit H-1B and I-485J at the same time?
Mr. Alan Lee Esq. answers,
Generally, an employer sponsoring an applicant for I-140 and I-485 should have the intent to offer permanent employment at the time that the employer signs off on the I-140 and the I-485 J “Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA section 24 (J)”. If your I-485 pends for 180 days and you have a new employer in the same or similar occupation willing to continue your sponsorship and signs off on a new Supplement J, you can submit it to USCIS to attempt to port your employment to the new employer. In the meantime, you may consider applying for an EAD on form I-765 Application for Employment Authorization so that you can be available for employment with an employer other than your current one. Also you gave a certain date that your H-1B expires. Have you taken the 60-day grace period to find new employment into account? If you have a new employer willing to do so, it can also alternatively petition for a new H-1B on your behalf, preferably within the 60-day grace period.
2. Withdrawal I-485 by mistake, attorney should rectify the situation as quickly as possible
A reader asks:
I am currently preparing I-485 materials. Before my current company’s H-1B, a more complicated situation occurred. I would like to ask how to prepare the materials? The company made a personnel adjustment around April 2023, and I was not affected. However, the HR oolong put my name on the layoff list and sent it to the company’s lawyer to cancel the H-1B. The withdrawal application was submitted at that time. Later in September, I contacted the company’s lawyer. She realized that there was a problem before, so she quickly issued another H-1B application, added premium processing, and approved it quickly. The lawyer said that she was also applying to cancel the previous withdrawal application at the same time, so I now have two H-1B approval notices from the same company. According to the lawyer, the H-1B withdrawal application did not take effect, so there is no problem. Do I need to ask a lawyer for any documents to prove this? The I-485 documents only include the two H-1B approval notices. Do I need to submit documents for the application to revoke the H-1B and the subsequent revocation of the H-1B?
Mr. Alan Lee Esq. answers,
It appears that your company’s attorney attempted to rectify your situation as quickly as possible after you made her aware of the mistake. It is commendable that she was also attempting to cancel the previous cancellation notice to USCIS at the same time. On the I-485 application, it might be helpful to have the lawyer explain the entire sequence of events so that USCIS has a complete understanding of your situation prior to making an adjudication on your I-485 application. If possible, the lawyer can also use the opportunity to explain if and how you might still be eligible for I-485 adjustment even in the event that USCIS does revoke the first H-1B petition in April 2023.
3. Consular officers do keep historical records
A reader asks:
My status expired in 2018, so I had to apply for a dependent status. Later, I did not have a visa until my OPT expired. After moving to Canada, I was asked about the L visa, but I did not expect it and was not prepared, which led to the rejection of my visa in 2021. Now, more than a year has passed, and GK5 has passed. I want to try to go back with an L visa. However, because the L visa is valid for 5 years, the L visa I-797 used is still the same. I heard that in the United States, visa interviewers will not dig up such historical records after 5 years. Is this true? The last time my visa was rejected in 2021, I was asked about the rejection on the new DS160. Do I need to fill in the reason for the rejection directly? Is the specific explanation 212A6C? Or can it be said that I was not well prepared before?
Mr. Alan Lee Esq. answers,
Consular officers do keep historical records, and it is likely that your prior refusal will be on the database. You have said that the reason for rejection in the past was 212 A6C. That ground is inadmissibility for fraud or misrepresentation in attempting to enter the US. On the DS-160 nonimmigrant application form, there are two questions relevant to your situation – the first is, “Have you ever been refused a US visa, been refused admission to the United States, or withdrawn your application for admission at the point of entry? If yes, explain. When? Where? What type of visa?” and “Have you ever sought to obtain or assist others to obtain a visa, entry into the United States, or any other United States immigration benefit by fraud or willful misrepresentation or other unlawful means?” To the first question, you would have to answer in the affirmative and answer the questions and state the circumstances that you believe are in your favor. If you believe that your explanation is thoroughly sufficient to explain that you did not commit fraud or misrepresentation, you may decide to answer “no” to the second question. The consular officer, however, should have a full understanding of the circumstances surrounding the prior denial when he or she finishes reading the DS-160 application.
4. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent
A reader asks:
I applied for EB-1B, and the waiting period has come. I just got my green card. My spouse and I submitted I-485, but it is still CRP. I would like to ask, is the subsequent review of the spouse’s status completely independent or will it have a certain impact?
Mr. Alan Lee Esq. answers,
A dependent spouse’s I-485 application is generally dependent upon the eligibility of the principal applicant, you. You have already received your green card, so that means that your principal case has been deemed approvable. The dependent will usually be approved if USCIS believes that the relationship is bona fide and that the dependent is not inadmissible to the US. Where marriages are concerned, USCIS may look into the marital relationship, especially if the couple married close to the time of submitting the I-485 applications. USCIS may also be conducting background clearances, and these are sometimes delayed. The agency wants to ascertain that applicants are not terrorists, have no criminal records or non-excludable criminal records, etc., before granting permanent residence. Dependents may also have had their own immigration file records in the past that USCIS will have to review before making a decision. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent.