Author: Alan Lee

1. A question on prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined. 

A reader asks,
My prevailing salary level (PWD) is approved, but the company’s pay center has changed location. After waiting for 6 months, I finally got the PWD. I received an email from a lawyer today, saying that I can start advertising, and asked me to send him some information, including the latest pay slip. I sent it. I thought everything was just waiting, but after a few hours, a lawyer said that the entity name of my pay slip had changed, and I had to wait another 8 months for a new file. what do I do? I explained the reason, saying that it is not because the entity name has changed, but because the location of the pay center has changed, from the original IL to CA. This requires refile, but how do I know? I never paid attention to this, because the company has never changed or reorganized. However, I went to see the pay slip today, and it did change many times in the middle, as if it changed every few months. HR said this is normal. I would like to ask, I am now asking HR to change my pay center back to IL, and it has been kept in IL. Is it possible to continue to use the current PWD?I have been working remotely for more than a year since I was hired, because when I applied for PWD before, I asked whether to apply according to my home location, and the lawyer said no, I need to do it according to the company headquarters office. The entity name company at that time happened to belong to IL, so they used IL. I didn’t know the pay slip keeps changing. I asked HR, and he said that the Pay center is determined according to the company code of each month or each period. I’m remote, it doesn’t affect me. I still file taxes according to my current state. HR said that I can apply for my manager to help me fix it on the pay center of IL. The lawyer didn’t respond either. what to do?

Mr. Lee answers,
A prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined should generally be the prevailing wage of the headquarters metropolitan statistical area. It is not clear from your fact situation whether the name on the prevailing wage form is that of the headquarters office in Illinois or a separate entity in Illinois. If a separate entity like a professional employer organization (PEO), it may well be that the prevailing wage will have to be redone unless everyone agrees that that will be the sponsoring entity and all documents come from there. In that case, a change back to being paid by the pay center in Illinois might make the situation easier for USCIS to understand in the I-140 phase. However, if the PWD was done for that location, and under the company name and not the pay center, I fail to see what is wrong with it. Recruitment would then be conducted in the headquarters location. The payslip issue would looked at by USCIS in the next phase of your case, the I-140 petition, assuming that the labor certification is approved. If the company is using its various offices in different locations to issue payslips and W-2s, the company would have to provide an explanation concerning the relationship and how the company operates with reference to payment of its employees. If the company uses a PEO, a company explanation along with proof of its relationship with the PEO would be warranted. In that case, the company should also be the petitioning organization on the I-140 and not the company’s pay center nor PEO. Issues of who is the actual employer with rights to hire, pay, fire, supervise, or otherwise control your work may come into play along with requests by USCIS to document these points if the petitioner is one of the company branches or PEO. As this is a complicated issue, and you may not know all the facts, your company should work with its attorney to take the best course of action keeping you informed of its decisions.

2. J-2 dependent who has EAD approved is generally allowed to work in the U.S.

A reader asks,
I am in China and want to apply for J-1 or H-1B to work in the United States. My spouse will go with me. How can the spouse legally work? What are the options? Is there any way to exempt?

Mr. Lee answers,
The J-2 dependent of a J-1 visa holder is generally allowed to work in the United States upon application as long as the income is not being used to support the J-1 holder. The dependent would file an I-765 application for employment authorization at any time after arrival with USCIS paying the filing fee of $410 along with submitting requisite documentation (not onerous). The legend to place on the application for the category of work is C-5. H-4 dependents of H-1B visa holders find it more difficult to apply for work authorization as it can only be done when the H-1B holder is being sponsored for permanent immigration by an organization and has the I-140 petition approved (the step after obtaining a labor certification) or the H-1B holder has been approved for an extension of time past the normal allowable six year period of H-1B status as 365 days have elapsed since the filing of a labor certification application or I-140 petition. Please be aware (if you are not already) that J-1 visas for China nationals come almost exclusively with a two-year home residence requirement before the applicant is eligible for H-1B or L-1 (intracompany transferee) or permanent residence approval.

3. H-1B holders who already have H-1B visas in the passports would continue to travel in and out using the visas.

A reader asks,
I am working in the US and I am going back to China to visit my relatives. I heard that combo cards are issued separately now, so do I not have to worry about H-1B’s invalidation if I return to my home country?

Mr. Lee answers,
Combo cards combining I-131 Application for Travel Document advance parole and I-765 Application for Employment Authorization benefits in one card were discontinued by USCIS in April 2022. At this time, employment authorization is usually given faster than advance parole. Advance parole allows individuals free travel in and out of the US during the time that an I-485 adjustment of status application is pending. Without advance parole, most applicants are precluded from traveling. H-1B’s, however, are still allowed to travel during the adjustment of status phase without advance parole. Those who already have H-1B visas in the passports would continue to travel in and out using the visas. A point of decision arises for those without visas who wish to travel outside. Some fear that they may be denied H-1B visas while overseas, and so those would usually apply for advance parole and wait for it to be issued before safely leaving and returning to the US. A difficulty with advance parole at this time is that USCIS does not give these applications priority, and so advance paroles are usually approved between 6-12 months from the date of application. We note that the speed of adjudication is inconsistent as we recently had one approved within eight days of application while another pended 18 months. To discourage individuals from asking about their cases, USCIS has posted processing times of 14 months for the California Service Center, 11.5 for the National Benefits Center, 13.54 Nebraska, 16.54 Texas, and 7 for the Vermont Center.

1. RFE is Request for Further Evidence and NOID is Notice of Intent to Deny

I filed an NIW application and kept checking the status, but nothing changed. Yesterday, the lawyer told me and I was very nervous and sad when I received the RFE. I have never seen an RFE before, so I would like to ask some questions: firstly, how to judge whether the received RFE is not a NOID, only the request for evidence is written at the end of the attached table? On March 1, the date on which the lawyer received the RFE was February 23, but the status I checked online remained unchanged and it was still case received. Won’t the status of the RFE be updated online? The RFE was very long and questioned all three prongs. I provided information for each point, but it was considered insufficient proof. Does this mean that the probability of passing is not high?

Some people say that if it is RFE instead of NOID, that means that there is an intention to pass it, but what is the situation like this when every point is questioned? Finally, I would like to ask prong3-it is beneficial not to use the labor certificate. How should I argue? If the first two prongs can be proved, then this is no problem? The first two prongs felt that they didn’t buy my recommendation letters very much, saying that they couldn’t prove the connection with other entities. I don’t have a patent for my articles, and the recommendation letters are mainly from the bosses of the company. Outsiders will not know my specific work. Excuse me, if you want to issue a relatively independent recommendation letter, you may find a company customer or a professor in a related industry. What are they going to write? Is it okay to write from a resume?

Mr. Lee answers,
For the benefit of the readers, a national interest waiver (NIW) requires that the petitioner show that there is substantial merit and national importance to the proposed endeavor; that the petitioner is well placed to advance the endeavor; and that it would be beneficial to the United States to waive the labor certification requirement. To your specific situation, USCIS labels RFE’s (Request for Further Evidence) and NOID’s (Notice of Intent to Deny). If your attorney informed you that he or she received an RFE, you can well believe it as he or she is looking at it. (The attorney should email or send you a copy). Generally speaking, the online status system should register the RFE, but the system is inconsistent and sometimes does not as a system is only as good as the persons inputting information into the system. It is always better to have at least one of the prongs decided in your favor when you receive an RFE, but being questioned on all three does not necessarily mean that you will be denied if there is a strong response. The question of the third prong – whether it would be beneficial to the country to waive the labor certification requirement – would likely be resolved in your favor if you are adjudged favorably on the first two points. Entrepreneurs and those who are extremely good in their fields with deep knowledge and experience are not readily amenable to the labor certification process, which demands that petitioning organizations only ask for minimally qualified people. Besides the impracticality of a labor certification application, USCIS looks to see the benefit to the US from the petitioner’s contributions even if other US workers are also available, and whether the national interest in the person’s contribution is sufficiently urgent. In looking at recommendation letters, USCIS is looking for objective observers who can talk about you, your endeavor, and how it may benefit the country. Letters from people who know you like colleagues, your managers, and company customers may not be seen as objective. A professor in a related industry who knows of your work may be more persuasive. USCIS is also looking for original letters, not letters written from a resume. Letters that look like they are written by the same person are not well accepted. The best letters are thoughtful ones written by individuals talking extensively about your endeavor, how well-positioned you are to advance the endeavor, and if possible, explain how granting the waiver may outweigh the benefits of making you go through the labor certification requirements.

2. An applicant for a B1/B2 visa must disclose past immigrant visa information

I’m in China and I’m going to America. I would like to know, if I submit a US green card application, can I still apply for a B1/2 visa? For example, if I apply for a business trip, tourism, or meeting in the United States, what proof do I need to provide?

Mr. Lee answers,
An applicant for a B1/B2 visa is required to disclose in the DS-160 nonimmigrant visa application form whether he or she has applied for an immigrant visa or had an immigrant visa petition filed on his or her behalf. Upon such disclosure, the decision of whether to issue the visa will be in the discretion of the American consular officer. You should prepare such materials as proof of the purpose of your trip, ties and bonds with the home country such as ownership of real property, other assets, bank accounts, employment or schooling, etc. I note that it has been our experience that many consular officers take less notice of immigrant visa petitions where there is still a considerable time to elapse before the priority date becomes current.

Check the Processing Times of Your Case Online

A reader asks:

I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

Article: CSPA Vis-À-Vis USCIS Adjustment Chart

A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.

In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”

This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”

Q&As:
1. Different immigration offices have different processing times

A reader asks:
I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

2. A I-140 visa petition is a preliminary petition and is not an application for immigration itself

A reader asks:
I applied for EB-1, but received RFE for I-140.  I have filed an EB-2 application and I-140 has been approved.  Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE?  I am worried about my application going into a black hole.

Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.

3. One premium processing fee for one application

A reader asks:
I need to apply for I-140 immediately, but I am hesitating whether to expedite the process? I also want to apply for the extension of h1/h4. Some colleagues suggests that I try to submit 140+h1/h4 extension+h4EAD together. Of course I want to save money, and I want to save a premium process fee, otherwise I will have to submit two premium process fee for the two requests. Is this possible?

Mr. Lee answers,
Unfortunately, there is no bundling of applications for purposes of submitting only one premium processing fee. At this time, USCIS will expedite for $2500 an I-140 petition. It will also expedite H-1B petition for the same amount. The $2500 that you would be paying for the H-1B expedite does not include expediting the H-4 or H-4 EAD although those applications have sometimes benefited from the H-1B premium processing to be adjudicated in shorter time. I note that USCIS decoupled H-1B’s from H-4s, but as a result of litigation, is coupling them again. That means that petition and applications have a higher likelihood of being adjudicated together in the future.

 

Article: Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap.

Q&As
1. Excusable overstay if married to a U.S. citizen

A reader asks:
The lawyer and I did not receive an RFE. The online account was not displayed. I called the customer service and said that I couldn’t see that I had an RFE in the system. In the end, my I-485 was denied because I didn’t reply to the RFE. Now the EAD card has also been revoke, and I need to leave the country within 180 days. I have already file motion to reopen, hoping to approve. I thought about several backup plans: 1. Marry a citizen, file I-130. Do I have to leave the country or can I stay in the country as long as I file 130? 2. Find a non-profit job within 180 days, because I can apply for H-1B immediately without lottery. In this way, I do not need to leave the country and apply for green card marriage at the same time. Is there any other way?

Mr. Lee Answers,
Sorry to hear that you were denied for abandonment on an RFE for which your attorney did not reply since neither the lawyer nor you received the RFE. This is unfortunately a more than occasional problem of USCIS that it should work to fix. On your question of whether you would have to leave the country if you marry a US citizen, the answer is “no” since an overstay is forgiven where you are the beneficiary of an approved immediate relative petition and file for adjustment of status. As to whether you can remain here if you find a nonprofit job within 180 days (I assume that you are thinking in terms of a non-cap H-1B and the time for unlawful presence), you would still have to leave the US and return under a H-1B visa status to be legally allowed to take up the employment.

2. Renewal Sponsorship by the Same Employer  Approved I-140 Can be Reused

A reader asks:
I have just been laid off recently. I am currently on Stem OPT. Last year I had an approved I-140, and PD was at the end of 2021. I would like to ask, besides trying to find a new company to go thru the cap H-1B registration process, what else is there for me? way? Is it difficult to use the I-140 again if I return to my country?

Mr. Lee answers,
Besides H-1B transfer, you can attempt to change your status to F-1 student to remain here or if you believe you have extraordinary qualifications, an employer or agent can apply for you under the O-1 category. Those come readily to mind. If you are from a country that has a treaty of navigation and commerce with the US, eg. Taiwan or Japan, you may qualify for E-1 or E-2 treaty trader or treaty investor statuses. Other options are possibly available which would be dependent upon your particular situation. On your question of whether it would be difficult to use the I-140 again if you returned to your country, you might be able to use it if the same employer decides to continue the sponsorship. If not, and the employer has not timely revoked the petition within six months of approval, you should be able to use the priority date for purposes of another employment-based petition.

3. Priority Date is Not Shareable

A reader asks:
I submitted NIW in 2022, and priority date(PD) is in November. I am preparing to file an EB-1A application in January 2023. Are EB-1A and NIW Shared PD? If EB-1A is adjudicated before NIW, is PD still valid after being denied? Do I have to submit EB-1A at this time, or I shall wait for the NIW’s case to be approved before submitting it? I think there is a high probability that my NIW will be approved. Even if EB-1A is denial, can PD be locked until November 2022?

Mr. Lee answers,
There is no “sharing” of priority dates until there is an approved petition. At that point, a priority date can generally be used by the beneficiary in a second employment based case. We have seen this many times in Chinese and Indian cases in which the EB-3 approved petition’s priority date is shared with a later filed EB-2 petition since the EB-2 dates of visa availability lapped those of EB-3 in the past few years. If you wish to use the November 2022 NIW priority date for purposes of an EB-1 petition, you should wait until the NIW is approved before submitting the EB-1 petition and requesting the NIW priority date.

4. PERM Denied  May Apply for Reconsideration

A reader asks:
The PERM audit was denied after 3 months because the address of the Certifying Officer was the old address. What is the solution for this situation? Is it useful to apply for reconsideration?

Mr. Lee answers,
The Department of Labor is strict as to its governing of notices of filing (NOF) for the postings that must be placed upon employment premises. The Department of Labor changed the address for notification to the Certifying Officer of any complaints. The new address of

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue NW, Room N-5311
Washington, DC 20210

became effective on August 25, 2021. Unless there were truly extenuating circumstances, it is difficult to believe that the Department of Labor would bend on a request for reconsideration.

 

1. Dissatisfied with the anti-epidemic policies in China is not consistent with political asylum

A reader asks:
I am a medical worker in China. During the epidemic, I expressed my dissatisfaction with certain anti-epidemic policies. After posting them in a WeChat group, I was criticized by law enforcement agencies. The hospital leader also admonished me, told me not to talk, just follow through the rules. Now, I come to the United States and want to apply for political asylum. Are these accusations and reprimands considered political persecution? Can my asylum case be approved?

Mr. Lee answers,
I suspect that a claim based upon dissatisfaction with anti-epidemic policies as you have expressed in your fact situation might have a problem being approved under US asylum law. The law is based upon past persecution or well-founded fear of future persecution. For a claim of past persecution, the events that you have related – criticism by law enforcement agencies and being admonished by the hospital leader – would likely not rise to the level of persecution necessary for an asylum claim to be approved. For a claim of a well-founded fear of persecution, you would have to demonstrate that the authorities are still interested in you and that you would face persecution upon return to China. You will also have to convince US immigration authorities or immigration court that your opposition to government policy was (past persecution) or is (future persecution) on account of race, religion, membership in a social group, political opinion, or nationality.

2. Employers can sponsor PERMs for remote positions

A reader asks:
Is there a fully remote for PERM and I-140? I recently got an offer. The company is in another state. I live in California. The company does not have an office in California, but it allows me to work from home. If I work from home fully remote, can I apply for I-140 PERM? Are there any additional risks? what should I be aware of?

Mr. Lee answers,
An employer can decide to sponsor a PERM labor certification application for a position that will be wholly remote, but would have to comply with additional requirements of the Department of Labor including an expansion of advertising for US workers on a nationwide basis as the position could be fulfilled by a worker in any location in the country. The company would generally use its headquarter location for purposes of the application, and obtain a prevailing wage determination in that metropolitan area.

3. It is difficult to obtain NIW, if papers are rarely cited

A reader asks:
I am a doctor of liberal arts and have been graduated for four years. I joined a consulting company after graduation, and now I am doing research-related work in a big factory, with very few papers and only 2 citations. I have several conference papers, and I want to try to apply for NIW, but several law firms have rejected them. I don’t know how to prove the nature of the work and the national interest related to the impact. Should I give up?

Mr. Lee answers:
An NIW case is generally very fact specific, and knowledgeable law firms will usually go over your situation and accomplishments before rendering an opinion that your case would not be approved. I note that USCIS is generally looking for pioneer type research in peer-reviewed journals which has been well cited. Having a few papers with only two citations is probably not very persuasive. If possible, a better approach might be contacting a US company or institution in your field and having it sponsor you through a PERM labor certification for permanent residence.

4. Immigrant Visa Denied But I-140 is Still Valid

A reader asks:
I am in China, and I want to apply for I-140 or EB1-A, but I am still a CCP party member (without a job), and now I want to know the following situation: 1. If I quit the party for less than two years when I went to the Guangzhou embassy or consulate for an interview , how likely is it to be rejected after two years or less than five years? 2. If rejected, will the approved I-140 and the accompanying priority date (PD) be retained? 3. Can I use this PD to submit another interview application again (for example, five years after quitting the CCP)?

Dear reader,
As you are aware, meaningful membership in the Communist Party of China imposes a five year bar on entry to the US for purposes of permanent immigration (not nonimmigrant visas) after leaving the Party. Appearing for an interview at the consulate in Guangzhou after leaving the party for two years will result in a denial if the association was meaningful. Denial of the immigrant visa does not automatically invalidate the approved I-140 petition. However, inability to rebut the ground of inadmissibility within a year may serve to terminate the entire case. If a case has been terminated by the Department of State, the priority date is no longer available for use.

5. Temporarily return to China to work remotely will not Hinder I-485

A reader asks:
I am currently in the OPT (non-STEM) period. I submitted the EB-1 application in January of last year, and submitted the I-485 in April last year. I am waiting for the interview. The interview time is unknown. My interview was ready to be scheduled in late September last year, and I have already obtained the EAD and AP of AOS. Our company has an office in China, and some colleagues went to work remotely in their home country for a few weeks. My boss also said that it was OK, and not to worry about layoffs. It seems that the interview will not be scheduled for a while. If I receive an interview notice within one month of returning to China, I should have time to return to the United States. I haven’t been back to China for almost 3 years, and I miss my family and friends very much. If I return to China to work remotely for a month and then return to the United States, will there be any problems?

Dear reader,
As you already have an advance parole and filed the I-485 application last year, I do not see a problem with your going home to work remotely for the company for one month before returning to the States. The time that you are planning to stay in China, one month, is conservative, and the purpose of working remotely for the company while overseas provides a good reason in the unlikely event that you are questioned about your purpose in having returned to China for the trip.

6. Is DS-2019 Important for My I-485 Application?

A reader asks:
I will submit I-485 soon, but I could not find the DS-2019 I had ten years ago. Ten years ago, I entered the U.S. as a J-1. After staying in the United States for 5 months, I returned to China for two years, so I should not need a J-1 waiver. More than 2 years later, I entered the U.S. again with F-1 status. I am currently F-1 STEM-OPT. Now I am following the main applicant to file my I-485, but I could not find the DS2019 form. I contacted the school I attended before, but no one was at work. Will there be a critical issue if I do not attach the DS-2019 with my I-485 form? How did others solve the problem?

Mr. Lee answers,
Although it would be better to have the DS-2019 exchange visitor form as part of the I-485 application, it should be adjudged less critical where you are able to prove that you returned to the home country for two years following your J-1 stay. (For many countries, coming to the US usually imposes a two-year home residence requirement before the individual can apply for permanent residence, H or L visas). I assume that you can present the passport containing the J visa and proof of your U.S entry and exit date along with proof that you served out the two-year home residency requirement in your home country.

1. Change of Status from H-4 to F-1 Must has Spouse’s H-1 Documents 

I’ve H-4 visa which expires in march 3 2023 and I want to change it to F-1 visa, can it be possible without the help of my husband documents? I want to study independently.

Mr. Lee answers,
Without the help of your husband’s documents, it is difficult to see how USCIS could approve a change of status application from H-4 to F-1. For a change of status in the US, USCIS must see that both you and your husband are maintaining legal nonimmigrant status – especially focused on your husband since he is the principal of the H-1B/H-4 statuses. You would need a copy of his H-1B approval and proof of recent pay from the H-1B employer to show that he is maintaining his status.

2. In Some Cases, Premium Processing Filing Fee Can be Waived

I am going to apply for employment-based immigration case. Someone suggests that I spend an extra $2,500 to expedite it, but I am hesitating. I saw on the USCIS official website, it takes 10 months to process, but someone said that he got approved in less than a month. Was it a special case or has it been speed up recently? Do I have to spend an extra $2,500 to expedite it?

Mr. Lee answers,

Employment based cases involving I-140 petitions generally take much time for USCIS to reach and adjudicate. For example, in checking the published times of the two immigration service centers handling these type of cases, Nebraska has a 20 month backlog on EB-1A extraordinary alien petitions, 10 months on EB-2 advanced degree petitions, and 17.5 on EB-3 professional/skilled worker petitions. Texas has a similar backlog of 22 months for EB-1A, 10 months for EB-2, and 20.5 months for EB-3.

The agency will expedite without requesting a fee in the following circumstances as per its policy manual:

• 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;^[3]
• 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.

Unless the petition that you heard of being approved in less than a month without premium processing fit within one of the above categories, it was most likely an outlier.

3. Do not Rely on USCIS’ Unofficial Notices 

I filed an EB-1A application before, received RFE, and then I asked my lawyer to withdraw it. I checked the case status online today, but the application was approved. I asked my lawyer, the lawyer replied that they had encountered the same situation before, and the USCIS would revoke the approval later. He didn’t promise that would be the case this time, though. I think immigration made a mistake. My lawyer said he would check with USCIS.  He got back to me and said whether the case was withdrawn or not, depended on the official notice. He said the USCIS would get back to him within 30 days. What is this going?

Mr. Lee answers,
I am of the same opinion as your lawyer that USCIS will later revoke the petition approval. In your fact situation, you clearly state that there was an RFE and that the law firm withdrew it. USCIS has a long history of denying as abandoned those cases in which it issues RFE’s and there is no response. In your case, there was a definite response – withdrawal by your attorney. In such case, USCIS will send a withdrawal confirmation. Please note that unofficial messages by USCIS on its online system cannot be relied upon 100% as we have seen many occasions on which the unofficial response does not match the ultimate adjudication that comes from the agency.

4. Filing I-485 without J Supplementary Form is More Likely to be Rejected

I planed to start working as a teacher in January 2023, and in December my school filed my EB-1B’s I-140 application . I originally planned to file my I-485 after joining the school in January, but suddenly I found out that EB-1’s priority date has become current in January. I thought about submitting I-485 in December, but the school said that I-485j form could not be issued without employment. I would like to ask, if I submit I-485 without I-485j form, will I be rejected immediately? Or can it be added later when the RFE is issued?

Mr. Lee answers,
To give some background, EB-1B for outstanding scholars and researchers backlogged to June 1, 2022, for natives of India and China on January 1, 2023, on the “dates for filing” chart of the Department of State and is holding to the same date in February. To file an I-485 application in January or February, you will either have to be a non-native of these two countries or have a priority date earlier than June 1, 2022. To your specific question of whether you could file in December 2022 without Form I-485J and not be rejected, the answer is uncertain. I recall that when the I-485J supplement was first added (a form required to confirm employment for most employment-based classes where the I-485 was not concurrently filed with the I-140 petition), USCIS was forgiving when the J form was not included with the filing. Whether the agency is so forgiving at this time is something that we do not know at this time. I note that if you tried, it may have been better to include a job offer letter from the institution. I also note that the J form is now being requested on the “Checklist for Required Initial Evidence for Employment Based Form I-485 Applicants”, which makes it easier for USCIS to reject than when it gave no previous written warning in checklist or instructions that the supplementary form was to be included.

5. STEM Graduates Can Stay in the United States for 3 Years with OPT

I want to stay in the US for five years. Now, I am going to apply for computer major. Can I stay in the United States for five years after studying this major?

Mr. Lee answers,
There are many individuals who manage to stay in the United States for five years after studying for a degree in computer science. That is considered a STEM (Science Technology Engineering and Math) major which is highly prized and allows graduates to obtain another two years of practical training on top of the regular one year of postgraduate optional practical training. During the three years, many individuals are able to switch over to H-1B specialized occupation visas in which individuals can remain on six years. Other options may also be available depending upon your particular situation. For those not born in India or China, there is also the possibility of employer-sponsored green cards within 1-2 years if everything goes well.

1. Pass the US citizenship to children overseas

I’d been in the United State from 2012 until I got my citizenship in 2018. Then in 2019 I traveled overseas. I got married and had 2 kids and came back to the US in 2021.  How can I bring my wife and kids to the U.S.? Can I pass my citizenship to my kids, if so how ?

Mr. Lee answers,
It appears that you have the necessary residence in the US (five years with at least two of which were after the age of 14) to transmit US citizenship to your legitimate children. You should make an application to the consulate or embassy on form DS-2029 Application for Consular Report of Birth Abroad of a US citizen child. For your wife, you would have to file an I-130 relative petition for her, have that approved, and she would ultimately interview for an immigrant visa at the American consulate or embassy having jurisdiction in the home country to issue immigrant visas.

2. CSPA

My brother’s application for immigration visa was filled in April 2010 approved in May 2015 and is in visa center he has two kids who are both over 21. Will they be able to migrate with parents if they are unmarried and when we can expect a visa center letter for further processing?

Mr. Lee answers,
Under the Child Status Protection Act (CSPA), the children are given a credit of five years to their age being under 21 due to the visa petition pendency of five years. It is more than likely that the children will not be able to emigrate with the parents as the counting time of the children’s ages will only stop when the priority date becomes current. Currently the sibling category final action date on the February visa chart is only available to those filing petitions prior to 3/22/2007, for China born. On the question of when you can expect a visa center letter for further processing, that will usually not come until the priority date is close to becoming current for visa availability.

3. I-485 filed in Nov 2022 with I-130 approved in June 2022, I 94 expiring in Jan 21st 2023. Option to travel outside US?

My parents got I-130 approved in June’2022. I filed their AOS (I-485) in Nov 2022, waiting to hear from USCIS. Their I-94 is valid till Jan 21’2023. They want to travel to China in Jan/Feb 2023. While waiting for I 485 approval, can I file their Advanced Parole (I-131) so that they can travel in Jan/Feb 2023? If not, Is there any other options which will allow them to travel outside US without affecting their I-485 application?

Mr. Lee answers,
Applicants for adjustment of status like your parents are only allowed to travel without disturbing the I-485 applications if they obtain advance parole. Unless the reason for their travel is emergent, they will not be able to receive advance parole approval in the short period of time before their contemplated travel. If the need is nonemergent, I suggest that they have a backup plan for travel later in the year. USCIS has been improving its times on most advance parole applications, but there are still many languishing for over six months. Hope that helps. 

4. I want to bring my parent her in the US. Can my boyfriend be my joint sponsor?

How can I bring my parent here in US. I am a stay at home mom, unemployed but only my partner (boyfriend ) is the only one providing for us. Can he be my joint sponsor?

Mr. Lee answers,
I will assume that you are asking if your partner can be your joint sponsor for purposes of sponsoring your mother for a permanent immigration visa. He is qualified if he is a US citizen or permanent resident, and has sufficient income and/or liquid assets to sponsor taking into consideration everyone that he is presently supporting and has sponsored for immigration in the past. Your partner would do a separate I-864 affidavit of support from you listing himself as joint sponsor. You would have to do your own, but your mother would be relying upon your partner for the financial support. Please note that you cannot submit one form only for yourself and your partner as he would not qualify as a household member. 

5. Can I get a work permit while waiting for the extension of my B1/B2 visa and F1 application?

I have been in the USA for almost six months with my i94 expiring in two weeks. I just applied for an extension of my i94, with an application for an F1 visa. I will love to work or do something to sustain myself while this application is pending. this is because of the difficulties associated with coping with my personal upkeep and my kids’ college expenses in the USA.

Mr. Lee answers,
Unfortunately, USCIS does not give employment authorizations for individuals attempting to change status from visitor to F-1 student. For that matter, it does not give automatic employment authorization to those who successfully change to F-1 student. Such successful applicants are allowed to work part-time on campus, but outside only with the approval of the educational institution under curriculum practical training or with USCIS permission for optional practical training or if there are severe economic hardship conditions which have occurred after one academic year of schooling or if there are emergent circumstances which are generally defined by USCIS as world events that affect a specific group of F-1 students and which causes them to suffer severe economic hardship, including, but not limited to natural disasters, wars and military conflicts, national or international financial crises.

6. I applied for change of status in Dec 2022 and my current B2 visa expires in February. Does my application cover extension of stay?

Since my application I have not received a response from USCIS. I have not applied for extension of stay. Does my application cover extension of stay? Am I suppose the repeat form 1-539 – Application for extension of stay before my I-94 expires or does my application payment of $450 covers extensions of stay?

Mr. Lee answers,
As you timely applied for a change of status to F-1 student, you are allowed to remain in the US while awaiting a decision on the change of status request. USCIS last year changed its policy which had previously required B-2 individuals applying for change of status to student to keep maintaining B-2 status and keep filing extension requests until the change of status was adjudicated. Please note, however, that other rules still apply that you cannot become a student until USCIS approves the change.