1. If the petitioner is listed as an NIW company, you would need to port and file an I-485 J with a subsequent employer
A reader asks:
My company will undergoing major changes soon, and next month my entire team will be laid off. I am exploring internal transfer. My NIW has already been approved, and my I-485 has been pending for three months; biometrics are done. However, when I applied for the NIW, it was directly related om my current team and the project I work on. The new role I might transfer to will likely have nothing to do with the filed mentioned in my NIW. If I transfer internally, I’m concerned that my NIW could be revoked, since it was handled by the company’s law firm. If I move to a new employer, I also worry that leaving my current employer could lead to NIW revocation. My questions: If I transfer internally to a new role and , unfortunate, I face a green card interview, could they question whether the new role matches my NIW filed and revoke it? If I don’t transfer and instead get laid off, but claim that I’m still engaged in the NIW field during unemployment (just temporarily without a job), would that be risky? I have heard that for an I-485 filed through NIW, after 180 days pending, there’s no need to file an I-485J, and even if I’m unemployed at the 180-day mark, it won’t affect approval. Should I take the internal transfer? In this situation, what is my best choice?
Alan Lee Esq. answers,
The initial question is whether the company’s law firm put down the company as the petitioner on the NIW petition. If so, you would still need to port and file an I-485 J with a subsequent employer after the adjustment application has been filed for 180 days to keep the petition. If you are both the petitioner and beneficiary, that is not necessary. In taking a new role with the company which is at odds with the NIW representations, the company would have to affirm at the time of your I-485 filing your position and salary, and if you are interviewed, you may be questioned concerning your NIW role. Between the choices of presenting yourself as unemployed and still being with the company, the better choice would probably be to stay with the company.
2. Even if an I-140 petition is approved, it’s still possible to change to an F-1 visa
A reader asks:
I currently have an approved I-140 for NIW, but my priority date is October 2023. If my H-1B is later laid off, is it still possible to convert to an F-1 visa? I’ve seen someone in a similar situation who seems to have successfully converted to an F-1. I also checked ChatGPT, and it said that the F-1 is a nonimmigrant visa, and the fact that the I-140 indicates immigrant intent might affect it. However, if you apply for a change of status within the US, your chances of approval might be higher. What advice does an attorney have?
Alan Lee Esq. answers,
It may still be possible to switch over to F-1 visa status, especially on a change of status application within the US. Although there is the question of immigrant intent on the I-539 Application to Extend/Change Nonimmigrant Status, it has been our experience that USCIS may grant the change of status if there is a bona fide purpose and intent to the schooling and to leave the US after its end.
3. It’s best to withdraw the old petition before filing a new I-131
A reader asks:
My I-131 is at the MSC center and I don’t know when it will be approved, so I plan to use my H-1B visa to return to my home country for a trip. Technically, my I-131 will be denied for traveling abroad during its adjudication, but I’ve also seen cases where it was still approved. If it is denied because I travel during adjudication, when will the denial status be updated? If, after reentering the U.S. with my H-1B visa, I immediately file a new I-131, do I need to proactively withdraw the old I-131?
Alan Lee Esq. answers,
If you are using the H1B visa for reentry to the US after travel overseas, it may be in your best interest to withdraw the old I-131 filing to avoid a denial. It is hard to say when the denial will come, but it would probably be better to withdraw before filing a new I-131.