1. Applying for NIW must show you can advance the national interest
A reader asks:
I am in China, and I consulted an American lawyer by email, and the reply was I met the requirements of NIW and can sign a contract. However, I was told that I must work in the relevant field for at least half a year after getting the green card, otherwise the green card could be revoked. It is difficult for me to do that because my major is education and I have been in China, so I apply for NIW which an employer is not required. If I really must find a job in the same field after entering the US, I will have to reconsider whether to apply for NIW. What should I do?
Arthur Lee answers:
Assuming that you get your EB-2 NIW is approved and you go for your visa interview, you should demonstrate how you plan to utilize your knowledge and skills to advance the national interest per your EB-2 application, for which an employer was not required. You may independently perform research, for instance, if your EB-2 NIW was research-related, or try your best to find an employer in the field of endeavor. While every NIW case is different, your ability to advance the national interest through your work as well as your intent to do so must be made clear to a consular officer.
There is a possibility that if you do not enter the position or endeavor promised on your EB-2 NIW application, your green card will be revoked. One way in which revocation would occur is in the naturalization (citizenship) process. At that stage, you would be expected to produce 5 years of tax returns and employment information. Also, an officer may ask you how you petitioned for your green card, and what job you performed upon entering the United States. While many adjudicating officers may not thoroughly ask about this, the few that do could find that you obtained your green card on false pretenses and begin proceedings to revoke it. I also note that in such a case, USCIS would issue a notice to appear (NTA) to initiate removal proceedings, and you would remain a permanent resident until the immigration judge issues a final decision.
If you are not confident in your ability to advance the national interest as proposed in your EB-2 NIW application (whether through self-employment or through employment with another company), then you may decide to seek a different route to getting a green card, such as a PERM labor certification.
2. The filing of an I-140 petition may impact F-1 visa approval
A reader asks:
I am currently working in China. Last year, I filed I-140 immigrant petition, the priority date is already current in the second half of last year. Due to my personal reasons, I want to apply for a PhD to return to the United States for further study. Since F-1 is a non-immigrant visa, and the time for a doctorate is relatively long, will the approval of the application have a relatively serious impact on the application for F-1?
Arthur Lee answers:
The filing of an I-140 petition may impact F-1 visa approval, which requires non-immigrant intent. That being said, you may be able to secure an F-1 visa if you bring clear evidence to the consular interview that you intend to return to China after your studies. You should bring evidence that you have ties to China that you do not intend to abandon including but not limited to property ownership or unexpired residential lease; family ties such as spouse, children, or parents; investments and financial assets in China; and demonstration of social relationships and involvement in your local community. You may also explain to the consular officer that your desire to take a nonimmigrant visa despite your possession of an approved I-140 with a current priority date with which you are eligible to enter the US with a green card is evidence itself of your intent to return to China.
If you desire to maximize your likelihood of obtaining an F-1 visa, you may request a withdrawal of your I-140 petition. Of course, this would likely eliminate your chances of coming into the United States as a lawful permanent resident for the foreseeable future.
Alternately, you can continue your green card case and enter the U.S. with an immigrant visa assuming that you pass the consular interview. Once you have a green card, you are eligible to attend school for PhD study without getting an F-1 visa. By the same token, you must engage in employment as promised on your I-140 petition for a reasonable time period. During your initial months in the United States, you may attend school as long as you can fulfill your job responsibilities on a full-time basis as stated in your I-140.
3. USCIS may apply previously captured fingerprints to many new cases
I submitted my I-485 application at the beginning of November last year and it was sent to SRC, but I haven’t received the fingerprint notice yet. It has been a long time, and I checked the case status extensively. The cases with same middle two numbers had rarely been fingerprinted, but the latter numbers’ cases had all been fingerprinted. What’s happening here?
Arthur Lee answers:
As a rule, all I-485 applicants between the ages of 14 to 79 are required to be fingerprinted for the purpose of conducting security clearance and criminal background checks. To increase efficiency, USCIS has in the past few years applied previously captured fingerprints to many new cases, but if USCIS is applying your old fingerprints to your I-485 application, it would have sent you a notice stating so. If you have not received a fingerprinting notice yet, you may file an e-request through the USCIS website to inquire about why you have not received your biometrics appointment yet.