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.