Author: Alan Lee

Article: EAD Automatic Extensions Abruptly Ended

As published in the Immigration Daily on November 4, 2025

On October 30, 2025, USCIS announced through an interim final rule (IFR) in the Federal Register that as of that date, it would no longer allow the 540 day automatic extension of employment authorization renewal applications for any applications filed on or after October 30, 2025. https://www.federalregister.gov/documents/2025/10/30/2025-19702/removal-of-the-automatic-extension-of-employment-authorization-documents   Applications filed prior to October 30, 2025, will continue to receive the benefits of automatic extension. To avert breaks in employment, the agency recommends that applicants file renewal applications up to 180 days prior to the expiration date. https://www.uscis.gov/newsroom/news-releases/dhs-ends-automatic-extension-of-employment-authorization. The rule affects those in the following classes who would normally be allowed the 540 days if they filed timely extension requests in the same employment authorization category:

  • Aliens admitted as refugees (A03);
  • Aliens granted asylum (A05);
  • Aliens admitted as parents or dependent children of aliens granted permanent residence under section 101(a)(27)(I) of the INA,8 U.S.C. 1101(a)(27)(I) (A07); 
  • Aliens admitted to the United States as citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau pursuant to agreements between the United States and the former trust territories (A08); 
  • Aliens granted withholding of deportation or removal (A10);
  • Aliens granted TPS, if the employment authorization category on their current EAD is either A12 or C19 (A12);
  • Alien spouses of E-1/2/3 nonimmigrants (Treaty Trader/Investor/Australian Specialty Worker) (A17);
  • Alien spouses of L-1 nonimmigrants (Intracompany Transferees) (A18);
  • Aliens who have filed applications for asylum and withholding of deportation or removal (C08);
  • Aliens who have filed applications for adjustment of status to lawful permanent resident under section 245 of the INA,8 U.S.C. 1255 (C09); 
  • Aliens who have filed applications for suspension of deportation under section 244 of the INA (as it existed prior to April 1, 1997), cancellation of removal pursuant to section 240A of the INA, or special rule cancellation of removal under section 309(f)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (C10); 
  • Aliens who have filed applications for creation of record of lawful admission for permanent residence (C16);
  • Aliens who have filed applications for TPS and who have been deemed prima facie eligible for TPS under 8 CFR 244.10(a) and have received an EAD as a “temporary treatment benefit” under 8 CFR 244.10(e) and 12(c)(19) (C19);
  • Aliens who have filed legalization applications pursuant to section 210 of the INA,8 U.S.C. 1160 (C20);
  • Aliens who have filed legalization applications pursuant to section 245A of the INA,8 U.S.C. 1255a (C22); 
  • Aliens who have filed applications for adjustment of status pursuant to section 1104 of the Legal Immigration Family Equity Act (C24);
  • Certain alien spouses (H-4) of H-1B nonimmigrants with an unexpired Form I-94 showing H-4 nonimmigrant status (C26); and
  • Aliens who are the principal beneficiaries or derivative children of approved Violence Against Women Act (VAWA) self-petitioners, under the employment authorization category “(c)(31)” in the form instructions to the EAD application (C31).

The immediacy of the rule is shocking and definitely disadvantages those applicants with little time left who have not yet filed for one reason or another, e.g. waiting to see if their I-485 adjustment of status filings will soon be closed out or scheduled for interview or considering change to another status. Now they will have to scramble to file their applications or risk a gap in ability to work. For others, they should file as close to the 180 day mark as possible and hope to receive an adjudication before their time runs out.

Interested persons can and should give comments to the IFR. For example, they may discuss other actions that USCIS could have taken to lessen stated concerns of public safety and national security such as paring back the automatically extended time to 180 days or even 120 days, especially in light of USCIS inconsistency in adjudicating EAD extensions on a timely basis within 180 days. As per USCIS projected processing times, EAD renewals for asylum applicants are currently running 6.5 months; and although there is no breakdown between initial and renewal applications, I-485 adjustment EADs are running 3.5 months at the National Benefit Center (NBC), but seven months at Service Center Operations (SCOPS), and “All Other Applications” are 5 months with NBC but 10.5 months with SCOPS. https://egov.uscis.gov/processing-times/. It should also be remembered that USCIS many times exceeds the projected processing times, and inquiries usually bring back less than helpful responses. DHS gave short shrift to the idea of returning the 180 day automatic extension period, saying that it suffered the same flaws as the 540 day automatic extension, but there is a huge difference between 540 days versus 180 or even 120 days, and acceptance of an alternative would balance the concerns of public safety and national security with the expectation of US employers and applicants to have uninterrupted work if timely requests for extension are made. Comments are due by December 1, 2025, identified by DHS Docket No. “USCIS-2025-0271”, through the Federal e-Rulemaking Portal: http://www.regulations.gov.

 

Alan Lee, Esq. Q&As published on the World Journal Weekly on November 2, 2025：1. In applying for the green card, you should disclose all nationalities. 2. You should obtain another position in the same or similar occupation prior to the adjudication of your I-485 application. 3. After activating the Combo EAD card, you would technically have no status if your I-485 application is denied.

1. In applying for the green card, you should disclose all nationalities.

A reader asks:
I previously worked in Canada for a US company for a year, then came to the US as a Chinese national on L-1 status. I later became a Canadian citizen (but would like to retain my Chinese identity). My company is applying for a green card for me, but I have a few questions:

  1. Do I need to fill out the citizenship form on the green card application? Do I need to add that I’m a Canadian citizen? My US visa is for my Chinese passport, and currently only states “China.”
  2. If I truthfully state that I hold both Chinese and Canadian passports, can I apply for a green card using my Canadian passport? However, I’m a Chinese national in the US with L-1 status. If I disclose my Canadian status, will my Chinese L-1 status still be valid in the US?
  3. I’m working and living in the US with an L-1 visa (Chinese passport), but need to use my Canadian passport when returning to Canada. What should I do about round-trip travel between the US and Canada? Do they use their Chinese passport for entry and exit in the US, and their Canadian passport for entry and exit in Canada? However, sometimes flights check for valid visas when picking up their tickets. If I don’t have a Canadian visa or green card, can I just show my Canadian passport? However, the Canadian passport is not the same Chinese passport I used to purchase the ticket.
  4. Can I travel from the US to other Canadian visa-free countries using my Canadian passport without a visa? That way, there would be no exit record from my Chinese passport in the US on my return trip. Is this possible?
  5. Can I use only my Chinese passport to travel back to China from the US in the future?

Alan Lee Esq. answers:
While not claiming to know any immigration laws other than the US, it is my understanding is that China does not allow dual citizenship. It would appear that your questions concern  attempting to dance between passport presentations to one country or another. In applying for the green card, you should disclose all nationalities. The green card application is tied to your meeting the requirements for the green card, not to your passport. Revealing your Canadian citizenship should not affect your L-1 status as the L-1 depends upon your continuing to meet requirements of L-1 eligibility. On your questions 3-5 concerning which passport to use for entry and exit or to go to visa free countries or China, I cannot claim to know the answers as I am not aware of the immigration rules of Canada, visa free countries, or China. I would venture guesses that for Canada and visa waiver countries, you can use the Canadian passport although you should carry both and for China, it only recognizes one passport. Perhaps other legal counsel dealing in international law could answer your questions with more certainty, or you could contact consulates or embassies of the countries to which you wish to travel. Good luck.

2. You should obtain another position in the same or similar occupation prior to the adjudication of your I-485 application.

A reader asks:
I was currently an EB-3 applicant last year, and a major company filed an I-485. I had my fingerprints taken in September 2023 and received my combo card in mid-2024. I’ve been waiting about 450 days for my green card. In October 2024, I changed jobs to a Chinese company and applied for an H-1B transfer. I’m still on H-1B status. However, the new company hasn’t filed an I-485j yet. Your attorney must file it when you have a green card interview; don’t file it if you don’t have one. A week ago, I was unfortunately laid off and am now in the H-1B grace period. I have a combo card, so I’m not worried about legal stay in the US, but I’m concerned about green card approval. Will the company that laid me off not file an I-485j for me affect my I-485 approval? It’s my understanding that if I haven’t found a job after 60 days, my combo card will automatically be used to maintain my US status. Does that mean I don’t have to worry about being unemployed after 60 days? I just need to make sure my next company files an I-485j for me during the green card interview.

Alan Lee Esq. answers:
As you have maintained status at all times and are now in the H-1B grace period, your status is still good to file for a further H-1B with another employer at this time or to continue employment on your combo card assuming that it is not expired or expiring. In your situation, you do not have to worry about the fact that your last employment did not file for job porting under I-485J. You should ensure, however, that you obtain another position in the same or similar occupation prior to the adjudication of your I-485 application. You should not depend upon waiting until you receive a notice of interview as USCIS may make a decision on your employment-based case without giving you an interview.

3. After activating the Combo EAD card, you would technically have no status if your I-485 application is denied.

A reader asks:
After activating the Combo EAD card and starting to use it for work, if my I-485 is later rejected, can I still switch back to H-1B? I know this question has been asked many times, but the answers seem to vary. How do I do this specifically?

Alan Lee Esq. answers:
If relying upon only the combo card, you would technically have no status if your I-485 application is denied. In order for you to obtain H-1B status again, you would have to leave the US after H-1B approval (prior to 180 days of unlawful presence after the denial) and reenter the country under H-1B status. H-1B is a dual intent visa, and so the fact that you have applied for the I485 previously should not factor into the question of admissibility. What may be considered are that the I-485 was denied and the reason(s) behind the denial.

Alan Lee, Esq. Q&As published on the World Journal Weekly on October 19, 2025：1. Where the job is lost during the I-485 process, USCIS allows job portability for a same or similar position 2. The company was sold, PERM will most likely have to be refiled 3. If your case is exceeding USCIS published processing times, you can check online 4. The NVC generally assigns the interview location to the consulate requested on the immigrant petition

1. Where the job is lost during the I-485 process, USCIS allows job portability for a same or similar position

A reader asks:
I’m about to lose my job, but I have absolutely no motivation to look for another one. If I understand correctly, you still need a job similar to your previous one while your I-485 is pending. Do you need to be employed or at least have an offer and have submitted an I-485j when your green card is approved? Are there any location, salary, or start date requirements for the new job? How can I get a green card with minimal effort?

Alan Lee Esq. answers:
It is requisite for an applicant for I-485 through PERM sponsorship to have the job offer available from the sponsoring employer at the time that permanent residence is approved. The applicant should then continue to work for the sponsoring employer for some period of time after permanent residence is approved to show continued commitment to the job. Where the job is lost during the I-485 process, USCIS allows job portability where the applicant is able to locate a same or similar full-time position. This occurs where the I-140 petition has been approved and I-485 has been pending for at least 180 days. You should find a new opportunity prior to the adjudication of the I-485, not after. I cannot tell you how to do this with minimal effort. Location is not a concern for job portability although salary may be taken into consideration in judging whether the new position as in a same or similar occupation. The start date is best to begin before the I-485 adjudication, assuming that you have employment authorization to take up the position – otherwise at the time that the permanent residence is approved.

2. The company was sold, PERM will most likely have to be refiled

A reader asks:
My company’s office (a small division of the main company) is being sold, but I’m staying with the main company with the same role and job duties, although I will likely be fully remote since there will no longer be a physical worksite. My residence is in the same metropolitan statistical area (MSA) as the current office, and my PERM is still processing. Do I need to restart the PERM process under these circumstances?

Alan Lee Esq answers,
I believe that given the circumstances as you have presented them, the PERM will most likely have to be refiled. The rule of thumb is that a PERM application cannot be changed once it has been submitted. The first issue has to do with the sponsoring organization. If the employer as listed on the PERM application was the small company which is being sold and not the parent, there is an incongruity as to the sponsor that cannot be fixed unless the acquiring company adheres to and satisfies succession in interest rules. If the employer is listed on the application was the parent company, this problem could be avoided. The second issue would appear to be the worksite becoming fully remote. That in itself is a change of circumstance if the recruitment specifically designated a worksite. In that situation, the description of the job changes as the position would become more attractive to US workers and opens up the recruitment to anyone in other US states who may be interested in working from home even if the company itself is in a faraway state.

3. If your case is exceeding USCIS published processing times, you can check online

A reader asks:
I applied for EB-1A for more than half a year, and no one has contacted me. Could there be an issue with my application? I feel like my case was forgotten. Should I email the MDPI to ask why it is still pending and hasn’t even been denied?

Alan Lee Esq answers,
I assume by your question that you are complaining about not receiving a decision, as you would like to communicate with USCIS to ask why it is still pending and why you have not even received a rejection notice. That is because the processing time for EB-1A exceeds six months for the service centers adjudicating this category of cases. There are two – the Nebraska Service Center is taking 14 months to reach 80% of its filed EB-1A applications while the Texas Service Center is at 15 months. https://egov.uscis.gov/processing-times/

In the event that you believe in the future that the service center handling your case is exceeding USCIS published processing times, you can check the processing times through the above link, enter your case type and your USCIS office, and the website will inform you of the normal processing times for your type of application. You can also enter the date in which your application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times.
If it is outside normal processing times, then you may file an eRequest (https://egov.uscis.gov/e-request/Intro.do ) or chat with EMMA (https://www.uscis.gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative.

4. The NVC generally assigns the interview location to the consulate requested on the immigrant petition

A reader asks:
My talent visa application has been approved, and I now have temporary status in Hong Kong. At the same time, I applied for U.S. immigration. If my priority date becomes current, can I schedule a visa interview at the U.S. consulate in Hong Kong?

Alan Lee, Esq. answers:
The NVC generally assigns the interview location to the consulate requested on the immigrant petition, e.g. I-130 or I-140. If you obtain temporary permission to reside in Hong Kong, you should normally be allowed to have your interview in Hong Kong. You can request in writing to the NVC to have the site of your interview changed to Hong Kong with proof of your ability to remain in Hong Kong if Hong Kong is not already the designated consulate.

Article: A LOOK AT THE WEIGHTED SELECTION PROCESS FOR CAP H-1B VISAS

As published in the Immigration Daily on October 3, 2025

The Trump administration proposed by regulation a new method of selecting cap H-1B registrants for next year’s selection process in its September 24, 2025, “Weighted Selection Process for Registrants and Petitioners Seeking to File Cap-Subject H-1B Petitions.” https://www.federalregister.gov/documents/2025/09/24/2025-18473/weighted-selection-process-for-registrants-and-petitioners-seeking-to-file-cap-subject-h-1b.  Public comments are due by October 24, 2025. The gist of the rule is that selection will favor those organizations willing to pay selectees the highest wage level assuming that the H-1B cap is exceeded.

Prior to the Administration’s surprise Presidential Proclamation of September 19, 2025, placing an add-on fee of $100,000 for new H-1B petitions filed on or after September 21, 2025, https://www.whitehouse.gov/presidential-actions/2025/09/restriction-on-entry-of-certain-nonimmigrant-workers/,  there was no doubt that the cap would be exceeded. Now there may be a modicum of doubt since many organizations will be reluctant to post up $100,000 to bring in an applicant from overseas.

Assuming that expected legal challenges fail, the Proclamation’s $100,000 fee remains, and the number of registrants exceed the cap, the rules read like a real lottery under which organizations that pay the most have more chances to win – like lottery balls, you get four balls for level IV, three for level III, two for level II, and one for level I. If there are multiple organizations sponsoring an individual, the number of balls the registrant receives depends upon the lowest wage level of any of the registrations.

USCIS is wary that there may be some trickery such that some petitioners or their related entities filing a H-1B petition after having the applicant selected with the highest amount of balls and then transferring or amending a petition later by themselves or a “related entity” which would then reduce the wage to an amount in a lower wage level. Another possible trick mentioned would be to have a new or amended petition which includes the same proffered wage but changes the work location so that the proffered wage now corresponds to a lower wage level in the desired location. “Related entity” is being read expansively in the proposed rule to include a parent company, subsidiary, or affiliate company, but would not be limited only to those companies legally related to the petitioner through corporate ownership and control – that some factors relevant to relatedness may include familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation. USCIS would consider the totality of the circumstances.

Situations that might not necessarily raise the ire of USCIS and be found permissible could be work location changes between the time of registration and the time of filing the petition, such as in the case of an employer with multiple offices putting the person at a different office at a wage that equals or exceeds the same equivalent wage level for the new location.

Procedurally, in filling out the selection information, organizations would have to select the box for the highest OEWS wage level for the registration and provide the appropriate SOC code and area of intended employment.

On the possibility that the H-1B quota may not be entirely filled next year, it should be remembered that Indians fill approximately 70% of the H-1B positions with most being selected from overseas. Organizations may not be willing to pay $100,000 each to bring them over. Additionally, the traditional selection process does not merely select 85,000 to fill the regular and Masters caps. USCIS in the past has selected over 120,000 as it anticipates that there will be many non-filings by organizations that do not follow through, denials, withdrawals, and rejections.

 

Alan Lee, Esq. Q&As published on the World Journal Weekly on August 31, 2025：1. Can I apply for an O-1 visa to start working in the U.S. if my EB-1A is approved

1. Can I apply for an O-1 visa to start working in the U.S. if my EB-1A is approved

A reader asks:
We are in the UK and applied for EB-1A, with mainland China as our country of birth. We heard the wait time might be up to 5 years, which is daunting.  If EB-1A is approved, is there any way to enter the US sooner without waiting for the priority date? Could I apply for an O-1 visa to start working in the U.S. and then wait for the priority date while in the United States? Would getting an EB-1A make the O-1 application easier?

Alan Lee Esq answers,
An O-1 is a possibility to enter the US to work first and then wait for the priority date to become current. Although the O-1 visa is not strictly dual intent (allowing both immigrant and nonimmigrant intents), it falls within a gray area in which we have seen many visas issued at the US consulates even though immigrant petitions have been filed or approved. Kindly note that although EB-1A can be done through self-sponsorship, the O-1 require some form of organization sponsorship. The rules appear to be loosely interpreted currently on organization sponsorship even when the alien essentially owns the company doing the sponsorship.

Alan Lee, Esq. Q&As published on the World Journal Weekly on August 24, 2025： 1. I am self-employed during my OPT period. Will this affect my I-485?

1. I am self-employed during my OPT period. Will this affect my I-485?

A reader asks:
Some articles mention that if one has fewer than 180 days of unauthorized work after the last U.S. entry, they can still adjust status under 245(k). But in my case, I was on OPT and self-employed, which led to unauthorized employment. I later left the country, and when applying for H-1B, I marked “No” on the DS-160 question about unauthorized work and did not list that experience. The H-1B got approved. Now, when I apply for EB-2, if I disclose the unauthorized employment, will this trigger a 212 fraud issue? Is the risk high? Am I basically out of options?

Alan Lee, Esq. answers:
The DS 160 form does not contain a question on unauthorized employment. It only has a question, “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a U.S. visa?” Thus it does not appear that you made a specific misrepresentation to the question of unauthorized employment, especially if you doubted that your self-employment may have counted as unauthorized work at the time of making your visa application. Fraud or misrepresentation also requires an intentional misrepresentation of the truth. In this case, such is doubtful given that there is not a specific question on unauthorized employment on the DS-160 form. You are correct that §245K can forgive unauthorized work under 180 days, but has no impact on questions concerning fraud or misrepresentation. I doubt that the question of misrepresentation on your self-employment during OPT will be a deciding factor in your adjustment of status application.

Article: Cap Registration H-1B Selection Process More Likely to Become Wage-Based Than Random Selection After OMB Passage of Proposed Rule

As published in the Immigration Daily on August 21, 2025

On July 17, 2025, DHS submitted a proposed rule, “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap‑Subject H‑1B Petitions” (RIN 1615‑AD01)—to the Office of Management and Budget (OMB) for review,  OMB completed its review on August 8, 2025, and the rule has now moved back to USCIS. https://www.nafsa.org/regulatory-information/uscis-proposal-weighted-selection-h-1b-cap-subject-registrants-and?utm_source=chatgpt.com The next step is publishing the proposed rule in the Federal Register, triggering a formal public comment period. At this point of time early in the second Trump Administration, it is doubtful whether it can be halted if the Administration presses for its passage.

What will the proposed rule look like? We likely do not have to guess much as it will most probably mirror the proposed rule that was finalized in the last days of the first Trump Administration, but never enacted.

Three paragraphs from the summary, comments, and regulation sections of the earlier rule, “Modification of Registration Requirement for Petitioners Seeking to File Cap‑Subject H‑1B Petitions” 1/8/21, 86 FR 1676, https://www.federalregister.gov/documents/2021/01/08/2021-00183/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions?utm_source=chatgpt.com give apt description of what we can expect in the upcoming proposed rule:

DHS is amending its regulations governing the selection of registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions (or the selection of petitions, if the registration process is suspended), which includes petitions subject to the regular cap and those asserting eligibility for the advanced degree exemption, to allow for ranking and selection based on wage levels. When applicable, USCIS will rank and select the registrations received generally on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I. The proffered wage is the wage that the employer intends to pay the beneficiary. This ranking process will not alter the prevailing wage levels associated with a given position for U.S. Department of Labor (DOL) purposes, which are informed by a comparison of the requirements for the proffered position to the normal requirements for the occupational classification. This final rule will not affect the order of selection as between the regular cap and the advanced degree exemption. The wage level ranking will occur first for the regular cap selection and then for the advanced degree exemption….

… DHS recognizes that, under this final rule, it is less probable that USCIS will select registrations (or, if applicable, petitions) that reflect a wage level that is lower than the prevailing wage level II. DHS agrees with the comment that registrations (or, if applicable, petitions) reflecting prevailing wage levels II, III, and IV will have greater chances of being selected compared to the status quo. To the extent that recent foreign graduates, STEM-track or otherwise, in Optional Practical Training (OPT) can gain the necessary skills and experience to warrant prevailing wage levels II or above, the final rule may result in greater chances of selection of registrations (or, if applicable, petitions) for those beneficiaries. Further, recent graduates with master’s or higher degrees from U.S. institutions of higher education already benefit from the advanced degree exemption and cap selection order, as eligibility for that exemption increases their chance of selection. A registration or petition, as applicable, submitted on behalf of an alien eligible for the advanced degree exemption is first included in the submissions that may be selected toward the regular cap projection. If not selected toward the regular cap projection, submissions eligible for the advanced degree exemption may be selected toward the advanced degree exemption projection. This existing selection order increases the chance of selection for registrations or petitions submitted on behalf of aliens who have earned a master’s or higher degree from a U.S. institution of higher education….

If USCIS has received more registrations on the final registration date than necessary to meet the H-1B regular cap under Section 214(g)(1)(A) of the Act, USCIS will rank and select from among all registrations properly submitted on the final registration date on the basis of the highest OES wage level that the proffered wage equals or exceeds for the relevant SOC code and area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I. Where there is no current OES prevailing wage information for the proffered position, USCIS will rank and select petitions based on the appropriate wage level that corresponds to the requirements of the proffered position. If USCIS receives and ranks more registrations at a particular wage level than the projected number needed to meet the numerical limitation, USCIS will randomly select from all registrations within that particular wage level a sufficient number of registrations needed to reach the numerical limitation.

With the total emphasis on higher wage/SOC level in the old rule which can be expected to be in the upcoming proposed rule, the question turns to how it will play out in March in the next H-1B selection if a new rule is implemented by then. The selection rate for this past March’s cap H-1B registration rose to 35.7% under the H-1B Modernization Rule which put many restrictions in place and raised the registration filing fee per applicant from $10 to $215. There were 336,153 eligible unique beneficiaries and 120,141 selections, leaving 216,012 unselected applicants. https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations/h-1b-electronic-registration-process  Approximately 85,000 cap H-1B visas are awarded every year. There is as yet no discernible information on the split between those applicants who registered under the regular as opposed to the Masters cap nor the salary levels under which they registered. But given the percentages and the number of the non-selected, it would stand to reason that most if not all level I applicants would not be selected under a proposed new rule. Having to pay $215 for an almost certain “no” will severely depress the number of organizations willing to pay the fee for level I positions.

On the fate of the earlier rule, it was blocked in September 2021 by District Court Judge Jeffrey S.White in Chamber of Commerce of the United State of America et al v. United States Department of Homeland Security et al, Case No. 4:20-cv-07331 (N.D.Ca. 9/15/21, https://www.pacermonitor.com/view/OPCZVAQ/Chamber_of_Commerce_of_the_United_v_United_States_Department_of_Homeland__candce-20-07331__0158.0.pdf, and withdrawn in December of that year https://www.federalregister.gov/documents/2021/12/22/2021-27714/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions. The timing of the earlier rule at the end of the first Trump Administration allowed the incoming Biden Administration to vacate the rule. Timing in the first year of the second Trump Administration will not be a factor.

However, it would be a tremendous shame to change to a wage-based selection process as geniuses are generally not identified by high wage levels coming out of colleges and universities, even on the Masters level, and to miss them and force them to leave the country would only weaken this nation’s ability to compete against the rest of the world, especially against our adversaries. Imagine personages like Albert Einstein, Bill Gates, or Elon Musk who did not astound with their academic genius in their universities, and what would happen if they were just graduating today (Bill Gates never graduated) and faced with the prospect of having to obtain a H-1B visa at the level III or level IV OES wage level to have the best shot of selection.

Alan Lee, Esq. Q&As published on the World Journal Weekly on August 17, 2025： 1. Under most circumstances, a new PERM filing must be made when the position changes 2. It is not necessary after extending the H-1B status for you to leave the US and obtain a visa in your passport

1. Under most circumstances, a new PERM filing must be made when the position changes

A reader asks:
I am on an H-1B visa. I feel that I have been in a rut in my current position for many years and have reached my career ceiling. I want to switch to a different career path for a fresh start. My company now has an open position at the same level as my current one but with different job responsibilities. My current role involves managing a department at the headquarters and its subordinate branches. The open position would be as the general manager of a subsidiary, overseeing all operations and department managers there, but only a small portion (20%) aligns with my current job responsibilities. I have an MBA and feel qualified for this role, which seems like a good opportunity. However, my green card application PERM was filed based on my current position. If I switch to this internal role, which is similar but not identical to my PERM application, would I need to refile for PERM?

Alan Lee Esq. answers,
Under most circumstances, a new PERM filing must be made when the position changes. The exception is when the I-140 petition is approved and circumstances have changed after the I-485 adjustment of status application has been filed and 180 days have elapsed since that time. If the circumstance is a change of employment to a position which is in the same or similar occupation, both the PERM and I-140 petition can be kept and the adjustment of status application continue. That is the AC-21 portability law allowing a “same or similar” job switch. If that fits your situation, you may be able to port your case as both positions as described appear to be managerial, and it would be up to the company and its representative to bring out the most convincing arguments to USCIS that the job is in a similar occupation perhaps by arguing that the roles are in the same occupational classification; or that job duties and the SOC code are similar, etc.

2. It is not necessary after extending the H-1B status for you to leave the US and obtain a visa in your passport

A reader asks:
I applied for EB-3 professional immigration. After submitting I-485, the priority date retrogressed, so EB3 is no longer current. My Priority Date is May 2021. The current H-1B stamp will expire in three months. Should I go to Canada or somewhere like that to renew it early next year?

Alan Lee Esq. answers,
It is not necessary after extending the H-1B status for you to leave the US and obtain the visa in the passport. The visa is only for travel purposes. Alternatively, you could also file for advance parole if you need to travel (currently takes about 6+ months to process) since you have already filed for adjustment of status to permanent residence. If you do decide that you wish to travel under H-1B status, you should check the consular post that you wish to visit to see whether they will entertain third country nationals at the US consular post, and make sure that you have all your proper documentation according to the consular checklist. Please note that unless you have advance parole, you would not be allowed to return to the US without obtaining the H-1B visa in your passport.

Alan Lee, Esq. Q&As published on the World Journal Weekly on August 3, 2025：1. Filing fee payment was processed. You can email USCIS if no receipt after 30 calendar days 2. For EB-1B, interviewers will ask about employment

1. Filing fee payment was processed. You can email USCIS if no receipt after 30 calendar days

A reader asks:
I recently applied for NIW from abroad. I can see that the $700 fee has been deducted, but I still haven’t received my receipt number. Today I asked Emma, provided my personal info, and they couldn’t locate my case—even though it’s been over a week since the payment was processed. How long does it usually take before Emma can provide the receipt number?

 Alan Lee, Esq. answers:
A lockbox can take 10–30 calendar days to cash the payment, assign the IOE/LIN/SRC/WAC receipt number, and push it into USCIS systems that Emma reads. One week is early; check again after another week. If you still have nothing at 30 days, then you can email the lockbox support address on the filing location webpage.

2. For EB-1B, interviewers will ask about employment

A reader asks:
I applied for I-140 last September and it was approved, my priority date was in December, and I did fingerprints in February this year. I recently checked the status and saw that my case is now in the interview stage.  How should I prepare the materials for an EB-1B family interview? What questions are usually asked during the interview?

Alan Lee Esq. answers,
For EB-1B (outstanding professor or researcher), interviews are generally employment-focused but also confirm the legitimacy of family members included. Prepare:

  • Employment documents: job offer letter confirming role, CV, portfolio if you have one, recent accomplishments.
  • Evidence of accomplishments in your field – if portable, bring some originals.
  • Family documents: marriage certificate, children’s birth certificates, photos, joint bank accounts, etc.

Interview questions may include:

  • Details of your job and role
  • Proof of bona fide marriage/family (if applicable)
  • Memberships in organizations.
  • Social media postings.
  • All relevant questions on form DS-260.

Good luck with your interview.

 

Alan Lee, Esq. Q&As published on the World Journal Weekly on July 20, 2025：1. You are applying for US immigration, which may be a bar to your utilizing the TN visa 2. Utilizing a start-up company for a green card may be a risk 3. Will using advance parole invalidate my H-1B? 4. One case should be withdrawn immediately when a green card is finally granted in either queue.

1. You are applying for US immigration, which may be a bar to your utilizing the TN visa

A reader asks:
I came to the U.S. last year on an L-1 visa. Due to poor economic conditions, the company hasn’t started my PERM process, and I didn’t get picked in the H-1B lottery. The EB-2 queue is also very long. Even if I eventually get H-1B and PERM, getting the green card still seems far off. So I’m considering this: after filing I-140 (either via NIW or whenever the company files PERM), I might go work in Canada and get citizenship there during the green card wait. Later, I could return to the U.S. on a TN visa and complete the green card process—assuming I find a job in the U.S. again. Compared to staying in the U.S. to wait, what are the downsides of this plan?

Alan Lee, Esq. answers:
I assume from your fact situation that you are in the US under L-1B rather than L-1A, the latter of which would afford you faster processing time under the EB-1C category associated with intracompany transferee managers and executives. That being said, your plan has a drawback that TN is a visa requiring nonimmigrant intent. The fact that you are applying for US immigration may be a bar to your utilizing the TN visa. Better situations are perhaps either remaining in the US during the time of the PERM or NIW and associated waiting times or remaining in Canada until you can be finally interviewed at the American Consulate in Montréal for an immigrant visa. Being in Canada has advantages as many people consider Canadian permanent residence or citizenship to be a safety net and your income can continue during the time of your wait.

2. Utilizing a start-up company for a green card may be a risk

A reader asks:
I currently work for a mid-sized company on H-1B and will max out in about two years. I once tried for NIW but was unfortunately denied. I recently got a verbal offer from a startup, and they promised green card processing starting Day 1. I’m now struggling with the decision—should I take the offer?

Alan Lee, Esq. answers:
Some considerations for jumping could include the following:

  1. Funding runway & survival odds of the start-up.
  2. Job’s ability to pass PERM (duties, requirements, your qualifications, correct prevailing wage, ability-to-pay proofs, etc.).
  3. Timing: you and the company may have a dilemma with only 24 months of H-1B time left, and it would require a concerted effort on the part of everyone to ensure that you do not run out of time before your 6-year H-1B max-out. With the time required to formulate the application along with periods of time to obtain a prevailing wage determination, and conduct the recruitment prior to filing, it is highly possible that without diligent attention to your case, you would not have the requisite 365 days after PERM filing to qualify for an extension of the H-1B visa.

You may wish to think about these factors to see whether the start-up fits before making the move.

3. Will using advance parole invalidate my H-1B?

A reader asks:
I’m currently in China, and my H-1B extension is under administrative processing (check). Can I just abandon waiting for the check and re-enter the U.S. using Advance Parole? Once in the U.S., can I continue working for my H-1B employer? Or will using AP invalidate my H-1B?

Alan Lee, Esq. answers:
If an H-1B holder like you travels to Canada for visa stamping and the case is placed on administrative hold, he or she would typically need to wait for the visa approval before reentering the U.S. However, as you have a pending adjustment of status application and an approved advance parole document, you may be able to abandon the visa stamping process and reenter the U.S. using advance parole instead.

Upon reentry with advance parole, you should be admitted as a parolee, rather than in H-1B status. This means according to legacy INS policy that you should be able to continue working in the U.S. but would no longer technically hold H-1B status unless you later file for an H-1B extension or transfer and have it approved.

4. One case should be withdrawn immediately when a green card is finally granted in either queue.

A reader asks:
In late October last year, my husband filed I-485, I-131, and I-765 and included me as a dependent. His PD is December 2017. This week, the immigration attorney from my company informed me that my case is now current as well. My PD is February 2018, and I can now file. I personally prefer to submit a separate I-485 and add my husband as a dependent as a backup. But is this allowed? Would doing this delay the progress of our green card applications?

Alan Lee, Esq. answers:
You may file your own I-485 as principal (PD 02/2018) even though you are already a derivative on your husband’s case. USCIS does not disallow multiple adjustment of status filings. Processing times are independent; one case should be withdrawn immediately when a green card is finally granted in either queue.