Alan Lee – Alan Lee

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 7, 2024 : 1. An individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole 2. A prevailing wage determination is required to begin the case 3. It is not a necessity to contact USCIS to cancel the F-1 approval if you have an I-485 receipt 4. EB-3 would typically take 3-5 years to complete

1. An individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole

A reader asks:
Currently H-1B Extension has been Approved. The lawyer is preparing to submit I-485 this week, and plans to return home after having his fingerprints taken, which is expected to be at the end of November or early December. In the case of renewing a visa sticker in China, if you want to submit AP (double insurance) and leave the country before AP is approved, will the AP application be automatically canceled? It is said online that the AP’s pending departure will be canceled before approval, but will the AP’s pending departure be canceled if there is an H-1B?

Alan Lee answers:
The rules of advance parole are that an individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole. We recently heard of a situation in which an individual did just that – file for advance parole, leave the US prior to its approval, and on returning to the US with a subsequently approved advance parole, had the I-485 adjustment of status application denied. Thus, having an advance parole is not double insurance if leaving before its approval. If approved before you leave, then it may very well be your double insurance. In the situation of an individual with valid H-1B visa and valid advance parole, the choice is up to that individual as to which document to use to reenter the US. We have heard tales that Customs and Border Protection (CBP) officers may express a preference as to which one they will be willing to accept, but generally, the choice will be yours where you have two valid documents for entry.

2. A prevailing wage determination is required to begin the case

A reader asks,
I joined my current company in February 2022. Currently, companies require employees to work for one year before they can apply for a green card. Due to various reasons, I have delayed starting PWD until now. Now I have a few questions: 1. When is the salary of PWD determined based on the position? Is it the current job or the job when the company accepted me? I was promoted to Senior Researcher in August this year, so the two prevailing wages should be different. Are the YOE requirements on PERM calculated based on when you first joined the company? Previously, the company drew H-1B on a part-time basis. Although I have worked for two years, I do not have 2 years of experience. Will this affect PWD? Is it OK to get EVL before advertising? Is the PWD process not required?

Alan Lee Esq. answers,
Under PERM labor certification, a prevailing wage determination is required to begin the case to ensure that the employer will be paying prevailing wages for the offered position. The wage is based upon the position which is being offered in the labor certification application, not necessarily your current job. If you were promoted to senior researcher last year and the company is beginning your labor certification now, it should be sponsoring you for the job that it intends for you to take on permanently, and so should give the corresponding job description for the PWD determination. If experience is required, the company will also set the requirements there in terms of months or years. The requirements of course should ensure that you are eligible for your own labor certification in terms of education, experience, and special skills. In the labor certification application, the PWD is a required part of the process. In terms of obtaining an employment verification letter (EVL) before advertising, that is always a good idea, and an even better idea is to obtain one prior to sending in the PWD request.

3. It is not a necessity to contact USCIS to cancel the F-1 approval if you have an I-485 receipt

A reader asks,
My children are in college and their current status is H-4. Since I am about to turn 21, I submitted I-539 to USCIS in June to change status from H-4 to F-1. It was not approved in October, and I received an RFE saying I-20. If the start date has expired, the school will need to issue a new I-20, and you will also need to pay a student registration fee of 200 yuan. As a result, when the child was applying for a new I-20 with the school, we could submit the I-485, so after submitting the I-485 application, we no longer had to worry about the F-1 RFE. Currently, the I-485 receipt has been received, but the child’s F-1 has also been approved. We did not supplement the RFE and do not know why USCIS approved the F-1 in this case. After consulting with the school, the school said that the I-485 receipt can maintain legal status. So, do we need to contact USCIS to cancel F-1?

Alan Lee Esq. answers,
The school’s advice is correct that the I-485 receipt of your child will allow the child to remain in the US as you all await the decision on your I-485s. It is not a necessity to contact USCIS to cancel the F-1 approval, and in some ways, it may be best not to do anything to disturb that adjudication. Whether your child decides to continue going to school or not will not affect his adjustment of status. Kindly note that he is not allowed to work unless he receives employment permission from the school or in connection with an employment authorization application based upon the adjustment of status application.

4. EB-3 would typically take 3-5 years to complete

A reader asks:
I studied for a PhD in China and am now a postdoc in the United States, with a contract until the end of next year. In May this year, I submitted NIW and it was approved. The boss of my laboratory has no grants recently, and he is not sure whether the contract can be renewed at the end of next year. I may need to return to China to wait for the appointment. I am a STEM major and have a 2-year residency requirement. My husband has a bachelor’s degree in China, and the American employer may want to apply for EB-3 for him in order to retain him. We are hesitant now and don’t know whether to let his boss do it for him. If so, what issues need to be paid attention to and considered?

Alan Lee Esq. answers,
Questions for you primarily depend upon whether you are able to obtain a waiver of the two-year home residence requirement, whether you will be able to keep up your activities in the NIW field, and what effect serving out the two-year residence in China if unable to obtain a waiver may have on your case. I assume that your NIW petition was a self petition, and not one in which the US employer was listed as the petitioner. In such former circumstance, you should continue to work in the field in which you received the I-140 approval and be ready to show a level of activity in your field at interview if you must return to China for two years.

With reference to your husband’s proposed EB-3 employment opportunity, that type of case would typically take 3-5 years to complete assuming no complications given the present slow speed of visa processing in that category for China born. If he is under J-2 dependent status, he will also have the same two-year home residence requirement. If so, and he has to serve the two-year residence requirement in China, he would be allowed to immigrate at the end as long as the employer is still willing to support his case. His EB-3 case would involve a PERM labor certification, I-140 petition, and either adjustment of status (if not subject to the two-year requirement or having a waiver of it) or consular processing.

An EB-3 case for your husband gives you and your husband two opportunities to immigrate to the US, although it may be longer timewise than yours. However, the time difference may not be that much due to due to employment category availability dates. In the month of April 2024, visa bulletin final action dates under which adjustment of status or consular processing cases can be finally approved for China born are up to February 1, 2020 for EB-2 and September 1, 2020 for EB-3.

IMMIGRATION NEWS THAT YOU CAN USE: THE ENDING OF THIS YEAR’S H-1B REGISTRATION– WHAT ARE YOUR ODDS? APRIL 1 –COMPLEX INTERTWINING OF NEW FEES AND FORMS FOR CERTAIN APPLICATIONS AND PETITIONS; APRIL VISA BULLETIN MOVEMENTS AND PROJECTIONS; AN UNWRITTEN RULE FOR CONSULAR PROCESSING; NEW WORRIES FOR CHINESE GRADUATE STUDENTS REENTERING US.

As published in the Immigration Daily on March 25, 2024

1. The Ending of This Year’s H-1B Registration– What Are Your Odds?

With the final registration filed before noon Eastern Standard Time on March 25, 2024, the book now closes on H-1B cap registrations for the year. Pending the results, USCIS appears to have done a good job in implementing the February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity”. The most important part – a fix to cut down on the rampant fraud of past years when USCIS moved from a full paper petition- based filing registration system to one simply based upon organization registration and payment of a small $10 fee to identify each of its candidates – was implementation of the beneficiary centric process through selection by unique beneficiary rather than by the number of organization registrations. In such process, even if 25 organizations put in registrations for the same beneficiary, the system would only identify the beneficiary once for purposes of selection rather than giving the beneficiary 25 chances.

So what are the odds? USCIS gave its forecast of the number of registrations that it expected to receive in another final rule, “USCIS Citizenship and Immigration Services Fee Schedules and Changes to Certain Other Immigration Benefit Request Requirements” on January 31, 2024 – 424,400. Assuming that the number is somewhat accurate, we believe that the percentage picked will be somewhere in the area of the low 30%’s based upon past selection records of the agency. Throwing out last year in which USCIS picked 188,400 after the hue and cry over the fraud which allowed 780,884 registrations, the average number of selections over the previous three years was 127,980 [1]. Such yields a selection rate of 30.15% of the 424,400 estimate, and would be an improvement over last year’s fiasco in which the selection rate was 24.1%. If the number selected is greater, or the number of individual beneficiaries less than estimated, the percentage of selection would be correspondingly higher than 30.15%. We can only hope.

Good luck to all participants in this year’s selection!

2. April 1 –Complex Intertwining of New Fees and Forms for Certain Applications and Petitions.

Unless blocked by litigation, the fee schedule implemented by the above final rule will come into effect on April 1, 2024. Many of the fee changes are straightforward, going from an old fee to a new fee, although some are humongous such as the fees for immigrant investors in which forms I-526 and I-526E for investors to file petitions either through individual or regional investment center investments move from $3,675 to $11,160 and for forms I-956 to apply for regional center designation and I-956F to request approval for investments in a commercial enterprise jump from $17,795 to $47,695.

The below are some of the more common petitions and forms that people use which not only feature changes in fee, but also tack on new charges to bring about more revenue to USCIS and/or to help cover the asylum program expenses.

I-130 – Increase of $90 for online filing ($625), $140 for paper filings ($675) (required for concurrent I-485 filings).
I-129 –H-1B – Increase of $320 on organizations with at least 26 ($780) and old fee of $460 for 25 and less and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
I-129 –L-1 – Increase of $925 for companies 26 and over ($1385) and $695 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
I-129 –O-1 – Increase of $595 for companies 26 and over ($1055) and $530 fee for 25 and under and nonprofits + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
I-140 – Increase of $15 ($715) + asylum program fee ($600 for employers with 26 employees, $300 with 25, and $0 for many nonprofits).
I-485 – Increase of $215 for adults ($1440) and for child filing with one parent $200 ($950). For combination I-130/I-485 filings, $140 (I-130) plus $215 (I-485) = $355 more. Associated advance parole = $630 and EAD $260 (new fees).

Readers should check that the proper new fees are being submitted for cases postmarked to USCIS after March 31, 2024, to ensure that the petitions or applications are not rejected.

3. April Visa Bulletin Movements and Projections.

The April Visa bulletin saw most movement in the Employment-Based (EB) final action dates chart with limited movement in the other three. Movement on the bulletin from March was as follows: FB (Family-based): B chart (dates for filing) India F-4 advanced one month two weeks to 4/8/06 and Philippines one year to 4/22/05. A chart (final action dates) F-2A advanced worldwide two months two weeks to 9/8/20 with the exception of Mexico which advanced two months to 8/15/20. EB (Employment-based) B chart (dates for filing) India EB-1 moved up three months to 4/1/21, its EB-3 advanced one month two weeks to 9/15/12 as did its EB-3W; EB-4 worldwide for ministers and for certain religious workers advanced 11 months to 12/1/20. A chart: (final action dates) China EB-1A advanced one month two weeks to 9/1/22 and India five months to 3/1/21; EB-2 ROW (Rest of World) advanced one month three weeks to 1/15/23 while China moved up one month to 2/1/20 and India one and ½ months to 4/15/12; EB-3 ROW moved one month two weeks to 11/22/22 and India advanced one month two weeks to 8/15/12; EB-3W ROW advanced one month to 10/8/20 and India one month two weeks to 8/15/12; EB-4 worldwide moved up 11 months to 11/1/20 and non-ministers went from 12/1/19 to unavailable. Unmentioned categories had no movement.

The State Department prediction of visa availability in coming months is that F-1 worldwide can advance up to three months; F-2A excluding Mexico up to six months; F-2B up to 10 weeks; F-3 several months; F-4 up to four weeks. In the EB categories, very little to no forward movement since the final action dates for many categories advanced for April 2024.

USCIS continued to use dates for filing for family-based cases and final action dates for employment-based in the month of April.

4. Unwritten Rule for Consular Processing.

In an AILA New York consular practice webinar in March, two former consular officers talked about unwritten rules and mentioned that it looks bad to the consulate when a person changes status in the US and then comes back for the visa because there is an intent issue with the consulate, especially where nonimmigrant intent is relevant, and this is a big no-no for people on tourist or business visas who may be able to get six months to stay, but the consular officer knows that most Americans would only stay a few weeks in a foreign country before going back.

5. New Worries for Chinese Graduate Students Reentering US.

This has become a hot button issue being reported on by the New York Times and Washington Post among others. Students and scholars from China with valid visas who take trips home are in danger of having their visas canceled and being sent home when they return to the US. This has happened to more than a dozen Chinese graduate students in PhD science programs at Yale, John Hopkins, and other major US research universities. In addition to having the visas canceled after being interrogated for hours, some wind up with a five-year ban on entry. Dulles Airport was reported as having the highest propensity to question and remove Chinese students so that the Chinese Embassy on January 29 warned Chinese students not to enter at that airport. Other mentioned airports in articles were Dallas-Fort Worth, Chicago O’Hare, and Boston Logan International Airport. For the foreseeable future, students and scholars from China in postgraduate science-related programs may wish to curtail nonessential trips back home.

[1] Figures from February 2, 2024 final rule, “Improving the H-1B Registration Selection Process and Program Integrity.”

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 24, 2024 : 1. USCIS would not expedite work authorization unless one of the five conditions exists 2. EB-1A denied, maybe wait until you have developed new circumstances that may strengthen your case before submitting a new petition 3. Whether to move forward now with NIW petition 4. The rescheduling of biometrics should not greatly affect the speed of your processing

1. USCIS would not expedite work authorization unless one of the five conditions exists

A reader asks:
I submitted I-485 for EB-1B in June. The main applicant has a work visa, which is still valid for more than two years. I would like to ask if it is possible for the secondary card to pass the expedited comb due to financial loss? Because if you review it carefully, you will probably find that the main applicant has a job. It is speculated that it may be helpful to have two children, which will make the burden heavier.

Alan Lee, Esq. answers:
It does not sound like financial hardship where your spouse already has a job and a work visa even if you have two children and a heavier burden. So that is not in my opinion a good reason to expedite your green card case. In addition, a dependent green card cannot be approved before that of the principal applicant. In your situation, it would appear that you can apply for employment authorization based upon the I-485 adjustment of status filing. If your husband is holding H-1B status, you are eligible to apply also for employment authorization as the spouse of a H-1B holder who has an approved I-140 petition. In both situations, USCIS would not expedite work authorization unless one of the following conditions exists:

Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
Emergencies and urgent humanitarian reasons;
Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
U.S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
Clear USCIS error.

2. EB-1A denied, maybe wait until you have developed new circumstances that may strengthen your case before submitting a new petition

A reader asks:
I submitted EB-1A to TSC in July and responded to the request further evidence in August. I just learned that my EB-1A was denied. My attorney told me that the officer who adjudicated my case had an approval rate of 14% in 2023, so it was not surprising that my case was denied. However, my attorney suggested me to wait for 3 to 4 months before refiling to avoid the same officer to adjudicate my case again.

Now I have two choices: 1. Wait for 4 months before refiling to TSC; 2. Submit it now to NSC. I inquired my lawyer for advice and he told me he had no opinion and that I should make a decision on my own decisio. He just told me that my denial will not affect the next application, and whether a case is approved depends largely on the adjudicating officer.

Therefore, I feel like I should submit many applications as if you submit many application, even if I get denied many times, I just need to be lucky enough to be approved once. Please tell me, should I wait for another 4 months to refile again to TSC, or should I refile to NSC immediately?

Alan Lee, Esq. answers:
No one is certain of approval when submitting EB-1A petitions and how an officer may view the evidence presented of extraordinary ability short of a Nobel prize or Oscar (and we have heard of USCIS giving such a petition a difficult time even when the petitioner did have an Oscar in one of the nonmajor categories). I note that the I-140 petition requests information on prior filings which means that an officer has the opportunity to look over your past filing. Unless you truly believe that you had a very strong case that was wrongly rejected, our opinion is that you may wish to wait until you have developed new circumstances that may strengthen your case before submitting a new petition to USCIS.

3. Whether to move forward now with NIW petition

A reader asks:
My wife and I just came to the United States. We are currently studying for a Ph.D. and have some papers and citations. I have consulted with a lawyer and found out that I can apply for NIW under current conditions. I don’t know whether to apply as soon as possible or wait until I graduate soon? There are several tangled points: 1. According to the current queuing speed of NIW, will I not be able to get in line after completing my PhD? 2. The visa is for 5 years. If I apply for I-140, is there any risk in returning to my country? My wife is F-2, does it have no impact on her return to China?

Alan Lee, Esq. answers,
NIW is under the EB-2 category and the current date of availability (when an immigrant visa or adjustment of status can be granted for those who have approved NIW petitions with USCIS) is for petitions filed earlier than January 1, 2020. So there is a significant waiting time after submission of your case. That being said, having a PhD may strengthen the NIW petition, especially if the PhD is in the STEM sciences. So you should take these factors into account in deciding whether to move forward now with your NIW petition. The other factor that you ask about is the risk of traveling back to the home country, China, during the process as you have a visa for five years. Generally speaking, persons with visas do not have to apply for new ones at US consulates or embassies and do not experience problems coming back into the US. That being said, you may wish to keep abreast of developments involving Chinese students on PhD degree programs involving research, some of whom have been experiencing difficulties with Customs and Border Protection officers on reentering the country. That may apply more to you than to your wife, and I do not expect that that would be much of an issue if your wife is traveling alone.

4. The rescheduling of biometrics should not greatly affect the speed of your processing

A reader asks:
I estimate that I can pass form BROW and submit I-485 in October. However, due to an emergency at home, I plan to return to my country after submitting the I-485. The reserved H-1B has been checked, and it is very likely that I will not be able to take fingerprints in time, so I will most likely need to reschedule. My PD is September 12, 2022. ROW’s form A is not current yet. Will doing this cause it to turn green slowly?

Mr. Lee answers:
USCIS cannot approve an employment based I-485 until the priority date becomes current. Even then, USCIS has its own backlog processing time even when the date becomes current as it does not have enough hands to process all cases when they become current. So the rescheduling of biometrics should not greatly affect the speed of your processing even though the agency in our experience does not continue processing cases and their related applications until biometrics are completed. In the past, requesting rescheduling could sometimes result in cases being denied as USCIS officers did not coordinate the request for rescheduling with the application. That has hopefully been largely resolved by the agency’s recent update to rescheduling wherein applicants are invited to make their own online rescheduling requests to USCIS through their existing online account or by creating an online account. Good reasons for requesting a rescheduling as per the USCIS policy manual are:

Illness, medical appointment, or hospitalization;
Previously planned travel;
Significant life events such as a wedding, funeral, or graduation ceremony;
Inability to obtain transportation to the appointment location;
Inability to obtain leave from employment or caregiver responsibilities; and
Late delivered or undelivered biometric services appointment notice.

Article: H-1B REGISTRATION FINAL RULE OF FEBRUARY 2, 2024, AND MORE – GET READY!

As published in the Immigration Daily on February 12, 2024

DHS’s February 2, 2024, final rule for H-1B registration, “Improving the H-1B Registration Selection Process and Program Integrity”, included the most important attempt at reform of the H-1B registration system – adding fairness – one beneficiary, one chance. The system will now be beneficiary-centric under which the beneficiary will have one chance of being selected regardless of how many organizations apply for him or her. The system to be replaced allowed multiple organizations to sponsor candidates for registration, in effect giving many candidates more selection chances. Over the years since the first registration in 2020 for the FY-2021 H-1B cap, gaming of the system became endemic as the unscrupulous saw little penalty in conspiring to give applicants more company sponsorships, and the number of registrations zoomed from 274,237 in FY- 2021 to 308,613 in FY-2022, 483,927 in FY-2023, and in the last year, 780,884 for FY-2024. Without the intervention, registrations could conceivably have topped 1 million for this year.

The rule outlines timing and procedure for this year’s registration:

Timing –

Registrants will be able to create new accounts beginning at noon Eastern on 2/28/24.
Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until 3/6/24 to enter beneficiary information and submit the registration with the $10 fee.
The initial registration period will open at noon Eastern on 3/6/24 and run through noon Eastern on 3/22/24.
USCIS intends to notify account holders and upload selection notifications to their accounts by 3/31/24.

Procedure –

The $10 fee remains for this year (it is projected that the registration fee will rise to $215 next year).
The process will be beneficiary-centric instead of organization-centric.
Online filing of non-cap Form I-129’s (Petition for a Nonimmigrant Worker) and associated I-907’s (Request for Premium Processing Service) will begin on 2/28/24.
Online filing of H-1B cap cases and associated I-907’s begins on 4/1/24.
USCIS will transition paper filing location for H-1B and I-907 petitions from service centers to the USCIS lockbox with the new filing locations to be announced in March.

To further combat fraud in the registration process, participating applicants must have a valid passport or travel document at the time of registration. Without such, they cannot participate. While renewal of the passport or travel document can be done later, the final rule says that “Such circumstances could include… a change in passport number or expiration date due to renewal or replacement of a stolen passport, in between the time of registration and filing the petition.” Other parts of the rule have words like “requiring valid passport or travel document information” … “While DHS recognizes that some individuals may not possess a valid passport or travel document, DHS has a strong interest in requiring passport or travel document information for each beneficiary….”

Emphasis was also placed upon this in the USCIS email announcement on January 30, 2024, specifying that, “USCIS will require registrants to provide valid passport information for valid travel document information.”

This year promises to be much different from past registration years. USCIS has already projected a much smaller number of registration applications than last year that will turn into a higher number of successful registrations if USCIS selects in the same average range of numbers as in the three years prior to the past year. So organizations and applicants interested in cap H-1B petitions should get ready for an interesting ride beginning this month.

It should be noted that unless the new January 31, 2024, final rule on fee increases, “US Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” is delayed or stopped by legal action, most organizations with selected registrants will have to pay enhanced fees to file H-1B petitions. For most nonprofits, the fees will remain the same. For small for-profit employers (25 or less full-time employees in the United States), the increases will be less, while those on larger for-profit employers (with 26 or more full-time employees in the United States) will be more. In addition to the regular add-ons ($500 fraud fee and either $750 or $1500 job training fee), both of the latter categories will have to pay a $600 asylum program fee, and the larger for-profit employers an enhanced $780 I-129 fee instead of the regular $460 fee. Fee increases are slated to go into effect on April 1, 2024.

IMMIGRATION NEWS THAT YOU CAN USE –MATTER OF STOCKWELL BROUGHT BACK TO BEGINNING STATE; ANOTHER BIA DECISION AFFIRMS RIGHTS OF CONDITIONAL RESIDENTS THROUGH MARRIAGE

As published in the Immigration Daily on January 31, 2024

Matter of Stockwell Brought Back to Beginning State.

Looking at the USCIS policy manual recently, it now entirely embraces Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), in which a person receiving conditional residence can marry someone else and that person can sponsor for permanent residence without having to go into the immigration court. USCIS had taken this route before, but complicated it later by saying that these applicants would have to go through the court, but now is coming back to the idea that USCIS can adjudicate.

This applies where USCIS has terminated the conditional residence for failure to timely file form I-751. Previously USCIS said that conditional residence could only be terminated by a formal notice by the agency. In the policy manual now, persons who file for adjustment of status from another marriage after the second anniversary of obtaining conditional residence, may be eligible to adjust on the new basis regardless of whether USCIS issues a notice of termination of status before the individual files an adjustment under the new basis. USCIS is now conceding that the INA provides that a conditional residence status terminates as a matter of law as of the second anniversary of the noncitizen’s lawful admission for resident status.

Another BIA Decision Affirms Rights of Conditional Residents through Marriage.

The BIA decided in a recent ruling, Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), to solve the problem of persons who do not have the above situation of another marriage in the wings; whom DHS believes have non-bona fide marriages, but in going to immigration court, have their cases terminated, and are left in legal limbo without lawful status. In Ferreira, the immigration judge (IJ) first concluded the DHS had not established removability and terminated and when the respondent filed another I-751, it was denied by USCIS and removal proceedings re-initiated. The IJ then terminated a second time because DHS could not find the file in two hearings. The BIA ruled that given the significance of a respondent’s interest in securing review of a denial of an I-751, an immigration judge should ordinarily review the denial of a form I-751 upon the request of the respondent.

Alan Lee, Esq. Q&As published on the World Journal Weekly on January 28, 2024 : 1. Applying EAD Encounters Two Situations 2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem 3. For an Expiring Combo Card, You Can Make New Applications 4. Premium Processing Application lockbox Address 5. Mailing Address and Residential Address

1. Applying EAD Encounters Two Situations

A reader asks:

My PD is at the end of July 2022, and now EB1 Form B can be submitted to I-485 to apply for EAD. Now I encounter two situations and want to ask for advice respectively.
1. My wife came to the United States on a J-2 visa from 2004 to 2006, and the old passport she used has been lost. She then returned to China and came to the United States to study again in 2020, using a new passport. Now that I-485 is submitted, a copy of the previous passport must also be submitted, and the old passport has a stamp for entering and exiting the United States, which can prove that the J-2 meets the two-year service requirement of the home country. However, now the old passport is lost. How should I deal with this situation?

2. My wife is currently a student with an F-1 visa and is expected to graduate by the end of next year. She is currently being interviewed for an intern in the summer next year. If I submit the I-485 together with me now, if I want to intern next summer, will I have to activate the I-485 combo card? She can no longer apply for an OPT EAD card. If I submit the I-485 separately now and submit it to her when the deadline is approaching, she might be able to apply for OPT EAD first and then get the combo, or should I submit the I-485 together now while she is intern? Also use I-485 EAD?

Mr. Lee answers,
To your first question, your wife can present a copy of the dependent DS-2019 form that she had when she came to the US under the J-2 visa; her affidavit explaining what she was doing from 2006 to 2020; and backing that up with whatever evidence that she has of her residence in China or any other country including any subsequent passports that she may have applied for and received outside of the United States.

To your second question, I do not see any disadvantage in filing I-485 applications for both of you at this time. You can both apply for employment authorization cards. I note that we have been seeing USCIS move faster on approving EAD cards based on I-485 filings, most coming well before six months in uncomplicated cases. In addition, USCIS is now giving five years validity time to EAD’s s based upon adjustment.

2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem

A reader asks:
I applied for I-140 and am waiting for approval. However, I still have an H-1B visa in hand, which can last for a while. Even if it expires, I plan to go to Canada to sign it back because I cannot leave the country while waiting for the I-131, which affects my vacation. I would like to ask if there are any disadvantages to submitting I-485 without I-131? For example, will it be slower or something? Can it be only fileI-485, not fileI-131?

Mr. Lee answers:
An I-131 application for advance parole while an I-485 adjustment of status application is pending is purely a benefit and not a detriment. Filing without the advance parole application will not slow the processing of the I-485. With the unexpired H-1B visa, you can travel in and out of the US during the time of processing of the adjustment application. Upon expiration, you should be able to have it renewed since the H-1B is a dual intent visa, allowing an individual to remain in the US on H-1B status while the permanent residence application is pending. Normally a renewal of the H-1B visa in Canada should not be a problem, although US consulates in many countries are wary of giving visas to third country nationals.

3. For an Expiring Combo Card, You Can Make New Applications

A reader asks:
In 2021, when my EB-1A was approved, I still had a pending NIW. In December 2021, I-485 was submitted based on approved EB-1A, and the pending NIW was also withdrawn. Unfortunately, I-485 was still transferred to NSC. In February 2022, there was no movement after the fingerprints were taken. During this period, I also received a NIW withdrawal notice. I received the combo card in June last year. This year I went to congressmen and the White House to urge me, but all I got were template responses from CIS. At this moment, the combo and physical examination are about to expire. what do I do?

Mr. Lee answers:
Unfortunately, USCIS is a money strapped agency and cannot adjudicate all of its cases on a timely basis. That can be seen from the long backlog processing dates that it releases to the public. For an expiring combo card for employment authorization and advance parole, you can make new applications. At this time, there is no additional USCIS filing fee for either application where the I-485 application remains pending. As for the medical examination, it is currently good for two years, and so it is up to you whether to take another one at this time or wait until USCIS is ready to adjudicate and requests a new medical.

4. Premium Processing Application lockbox Address

A reader asks:
I applied for EB-1A for special talents. Last week, UPS sent it to TSC Premium Processing. Today, the entire application was returned. The rejection letter from USCIS said: The fee for the I-129 petition I submitted was incorrect. What’s happening here? I applied for EB-1A and submitted I-140, not I-129 at all. No matter in the I-907, I-140 or cover letter I submitted, it was clearly stated that I was applying for EB-1A. The only thing I can think of is, should I fill in the I-907 and I-140 that I applied for E11? Maybe the people reading it don’t know that EB-1A is E11?

Another possible reason I think is that they thought I sent it to the wrong jurisdiction. I am not in the United States now. When I sent the application, I filled in the mailing address of my previous residence in New Jersey (TSC jurisdiction) and asked the landlord to collect it on my behalf. Physical address is the Chinese address filled in. Maybe they think I can’t send it to TSC using a c/o mailing address in TSC’s jurisdiction. But even so, should a Chinese address be able to send TSC?

Mr. Lee answers:
If you submitted the fees of $700 and $2500, they would be correct fees and USCIS should not have rejected the I-140 petition for alien worker and I-907 premium processing application. It appears that your choice is to send them the same package with an explanation, or to redo the forms and send in the paperwork again. On where to send an application if you are in China, the current address for a person stating an address in New Jersey is:

USCIS Chicago Elgin Lockbox

U.S. Postal Service (USPS):

USCIS
Attn: Premium I-140
P.O. Box 4008
Carol Stream, IL 60197-4008

FedEx, UPS, and DHL deliveries:

USCIS
Attn: Premium I-140 (Box 4008)
2500 Westfield Drive
Elgin, IL 60124-7836

5. Mailing Address and Residential Address

A reader asks:
I am going to apply for I-140. The mailing address (5b-5g) in Part 4 of the form is the Chinese mailing address filled in Chinese. Foreign address (3a-3f) is the Chinese residential address filled in English. Can these two be filled in differently?

Mr. Lee answers:
Mailing address and residential address are many times different. That is the reason for which USCIS gives the two spaces. Many individuals have different mailing addresses for security reasons or because they just prefer that their mail goes to a different address.

IMMIGRATION NEWS THAT YOU CAN USE – USCIS TAKES FIRST STEPS FOR H-1B CAP SEASON; POLICY MANUAL ON F-1 AND M-1 STUDENTS CLARIFIES POINTS OF LAW AND PROCEDURE.

As published in the Immigration Daily on January 22, 2024

USCIS Takes First Steps for H-1B Cap Season.

A big change for H-1B filings – both cap and non-cap with I-129 and I-907 is being announced to take effect in February to make everything electronic. USCIS is encouraging setting up organizational accounts to allow multiple people in an organization and legal representatives to collaborate and prepare H-1B registrations, I-129’s, and I-907’s. There will be two national engagements on organizational accounts on January 23 for companies and 24 for legal representatives as well as several smaller sessions leading up to the H-1B registration. The entire H-1B lifecycle then becomes fully electronic from registration to final decision and transmission to the Department of State. For those still doing paper filings, USCIS will transition the paper filing location from service centers to the USCIS lockbox.

This is a good change to further save the forests of the world. USCIS will have shrunk its H-1B paper footprint from two copies to the present one copy to the future no copy. If this had been announced earlier, it would have given USCIS the option of demanding complete petition filings of all interested parties instead of soliciting registrations of organizations if the new beneficiary centric registration system was not yet ready for this year’s H-1B cap selection process.

Policy Manual on F-1 and M-1 Students Clarifies Points of Law and Procedure.

Perusing the USCIS policy manual pertaining to nonimmigrant students, there are some new and old policies of which readers should be aware of or remember:

The policy manual on F or M-1 status now says that officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or immigrant visa petition as not necessarily impacting eligibility for the classification, so long as the student intends to depart at the end of the temporary period of stay – that in all cases, the officer must consider all facts presented when determining whether the student is eligible for F or M classification.
F-1 students may be eligible for public high school for one year after paying the school district the real cost of schooling, but there is no F-1 study allowed in public schools for elementary grade children.
When a student is transferring between schools or programs, the limit is five months that he or she is allowed before resuming classes at the transfer school or program, or within five months of the program completion date on the I-20 – whichever date is the earlier.
The policy manual reminds students on STEM OPT extensions that they have duties not only to report change of address or employer or loss of employment within 10 days of the change to the DSO, but also to complete a validation report every six months to the DSO within 10 business days of each reporting date; and submit a self-evaluation of progress toward the training goals described in the I-983 prior to the conclusion of the STEM OPT period, and both student and employer must sign each evaluation to attest to its accuracy. There must be an initial evaluation within 12 months, and a concluding evaluation.
On travel outside the US during the cap-gap period and returning under F-1 status, the policy manual says that travel is permitted where USCIS has approved the H-1B petition and request for change of status; the student seeks readmission before the date of the student’s H-1B employment beginning (normally October 1), and the student is otherwise admissible. If traveling when the application for change of status is pending, the change of status portion is deemed abandoned.

Knowing or remembering the rules may serve to keep the nonimmigrant student from running afoul of the intricacies of the law in this area.

Article: BIG CHANGES IN JANUARY 2024 VISA BULLETIN – WHY NOW?

As published in the Immigration Daily on December 13, 2023

October marks the beginning of the government fiscal year, in years past signaling a new year of visa numbers. August and September were generally “dead” months as we eagerly awaited the new visa allocations of October. Now after minimal bulletin changes from October-December, we get a visa bulletin chock-full of changes. Why? Have Visa Office operations changed so much that significant date changes must wait until the second quarter of the fiscal year?

That being said, the January visa bulletin is designed to bring smiles to the faces of many as there are no retrogressions, only advances.

Family-based final action dates: F-1 (adult single sons and daughters of US citizens) remained the same for ROW (Rest of the World) at 1/1/15 while Mexico and the Philippines remained at 5/1/01 and 3/1/12 respectively; F-2A (spouses and children under the age of 21 and unmarried of LPRs) advanced almost 9 months to 11/1/19 for all countries except Mexico which advanced 8 ½ months to 10/22/19; F-2B (adult single sons and daughters of LPRs) one week for ROW to 10/1/15 and the big jump was Mexico advancing 17 months three weeks to 10/22/03 while the Philippines remained at 10/22/11; F-3 (adult sons and daughters of USCs) up 3 ½ months to 4/22/09 for ROW and Mexico advanced 5 months 2 weeks to 9/8/98 and the Philippines remained at 6/8/02; and F-4 (siblings of USCs) ROW moved one month to 5/22/07, India advanced one month one week to 11/15/05, Mexico stayed at 9/15/00, and the Philippines moved one month three weeks to 10/15/02.

Family-based dates for filing: No changes.

Employment based final action dates: EB-1 (extraordinary aliens, outstanding professors and researchers, and multinational executives and managers) stayed current for ROW with China advancing four months three weeks to 7/1/22 and India three years nine months to 9/1/20; EB-2 (advanced degree holders or exceptional aliens) ROW advanced three months two weeks to 11/1/22 with China being up two months one week to 1/1/20 and India two months to 3/1/12; EB-3 (professionals or skilled workers) ROW moved up nine months to 8/1/22 with China advancing eight months one week to 9/1/20 and India one month to 6/1/12; EW-3 other workers (unskilled) ROW advanced one month to 9/1/20 and China one year to 1/1/17 and India one month to 6/1/12; both categories of EB-4 (religious) moved to 5/15/19 for all countries, representing an advance of four months two weeks for clergy and the reopening of the category from unavailable for certain religious workers because of passed legislation; EB-5 ROW (immigrant investors) remained current with China advancing two months one week to 12/8/15 and India one year 11 ½ months to 12/1/20. All set aside EB-5 numbers remained current.

Employment based dates for filing: EB-1 ROW remained current with China advancing five months to 1/1/23 and India 1 ½ years to 1/1/21; EB-2 ROW moved up one month two weeks to 2/15/23 while China and India remained the same at 6/1/20 and 5/15/12 respectively; EB-3 ROW remained at 2/1/23 while China advanced 10 months to 7/1/21, India remained at 8/1/12 and the Philippines at 1/1/23; EW-3 other workers remained at 12/15/20 while China remained at 6/1/17, India at 8/1/12, and the Philippines at 5/15/20; both categories of EB-4 moved up six months for all countries to 9/1/19; EB-5 ROW remained current while China and India stayed at 1/1/17 and 4/1/22 respectively. All set aside EB-5 numbers remained current.

For the month of January, USCIS still continues to use dates of filing for both family-based and employment-based cases for adjustment of status.

One hopes that visa chart progression continues in coming months, but such will seemingly depend upon the inner operations of the State Department.

Alan Lee, Esq. Q&As published on the World Journal Weekly on December 3, 2023 : Re-entry Permit

A reader asks:
I handed in my re-entry permit at the end of December last year. On January 23 this year, I received a notice that the finger print was taken, which means that the fingerprints recorded before can be reused, and there is no need to print them. At present, I am considering returning to China for a year, and I have already returned to China, and I am applying for a reentry permit at the same time. However, the case has been stuck here. According to the USCIS website, the current reentry permit takes 17 months. I wonder if it really takes this long? If I still can’t get down, do I have to return to the United States?

Alan Lee, Esq answers,
Although the official USCIS published processing time for 80% of reentry permits is currently 17.5 months, that does not mean that your application will pend for that long. In looking at our recent past cases, we have had reentry permits approved taking as long as 19 months and as short as 9 months. The permanent resident card (green card) only allows the holder to be outside the United States at maximum 364 days. If you have not received the reentry permit, we strongly advise you to return to the States within the time permitted on the green card. If you stay outside the one-year limit, you would essentially be relying on the reentry permit being approved and shipped to you overseas for your entry back to the States after one year. A problem with approval or your residence receiving it in the US or with shipping it to you overseas could endanger you permanent resident status.

Article: CLEAR BENEFICIAL CHANGES TO THE H-1B PROGRAM IN THE PROPOSAL

As published in the Immigration Daily on November 24, 2023

This is the fourth of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is reinstating the deference policy which instructs officers to consider prior determinations involving the same parties and facts, when there is no material error with the prior determination, no material change in circumstances or in eligibility, and no new material information adversely impacting eligibility. Here USCIS may consider including the word “clear” to emphasize that errors, changes, eligibility, and adverse information should not only be “material”, but should be “clear” errors, changes, eligibility, and adverse information to reduce the chances that a decision will just be made on difference in opinion between two officers.

Eliminating the itinerary requirement for H programs – the reason being that the itinerary is largely duplicative of information already provided in the LCA.

Where USCIS approves an H-1B after the initially requested validity date has ended (typically through favorable motion to reopen, reconsider, or appeals), USCIS may issue an RFE asking whether the petitioner wants to update the dates of intended employment, and if the petitioner wishes, it can submit a different LCA that corresponds to the new requested validity dates even if the LCA is certified after the date the H-1B petition is filed. USCIS would then approve the H-1B petition for the new requested period of time for which eligibility has been established rather than require the petitioner to file a new or amended petition.

H-1B cap exemptions are changing in a way that may benefit a number of organizations in that the requirement that a nonprofit research organization be “primarily engaged” in basic research and/or applied research and governmental research organization that its “primary mission” is the performance or promotion of basic research and/or applied research would be changed to replace “primarily engaged” and “primary mission” with “a fundamental activity of” to allow for such organizations that conduct research as a fundamental activity, but are not primarily engaged in research or where research is not the primary mission, to meet the definition of a nonprofit research or governmental research entity.

On the same subject of cap-exempt organizations, and those working for companies on the site of the exempt organization, DHS proposes to change the phrase “the majority of” to “at least half” to clarify that H-1B beneficiaries who equally split their work time between the exempt entity and a nonexempt entity, may be eligible for cap exemption. In this context, and taking into account that many positions are performed remotely, the proper focus is on the job duties, rather than where the duties are performed physically. Also that the requirement that a beneficiary’s duties “directly and predominantly further the essential purpose, mission, objectives, or functions” of the qualifying organization would be replaced with the requirement that the duties “directly further an activity that supports or advances one of the fundamental purposes, missions, objectives, or functions” of the organization.

USCIS is proposing an automatic extension of cap gap work authorization from September 30 to April 1 in the next year to deal with delayed adjudications and avoid potential disruptions in employment authorization. This will cover automatic extension of F-1 status, post completion OPT and STEM OPT.

USCIS is clarifying that petitioners can put in any date after October 1 for cap cases as long as the requested date does not exceed six months beyond the filing date without fear of the petition being rejected.

On beneficiary-owners, DHS wants to encourage beneficiary owned businesses to participate in the H-1B program with the idea that the beneficiary must perform specialty occupation duties the majority of the time even though he or she may perform duties that are directly related to owning and directing the business. The non-specialty occupation duties must be directly related to owning and directing the petitioner’s business although a beneficiary-owner may perform some incidental duties, such as making copies or answering the telephones. Non-specialty occupation duties may include but are not limited to signing leases, finding investors, and negotiating contracts. (It would appear that this petition must give a breakdown of the percentage of time spent performing each job duty). DHS is trying to set reasonable conditions for when the beneficiary owns a controlling interest, meaning that the beneficiary owns more than 50% of the petitioner or when the beneficiary has majority voting rights in the petitioner. There will be limitations in that the time given for initial approval and first extension is 18 months and any subsequent extension will not be limited and can be approved for up to three years.

This concludes our series.

The above article and the ones preceding it do not entirely cover all parts of the proposed rule. Readers can peruse the complete proposal in the Federal Register, Volume 88, No. 203, October 23, 2023. Parts covered were those deemed most important and interesting by this writer. In summing up, other than the beneficiary centric proposal, there are some novel propositions, some included as the result of successful court challenges, and some that just make common sense. The DHS comment that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings” is nonsensical in light of the catastrophic outlined abuses if the proposed beneficiary centric system is not ready in March.