Author: Alan Lee

Alan Lee, Esq. Q&As published on the World Journal Weekly on June 14, 2026: 1. If you are traveling under advance parole, you are not required to have a H-1B stamp 2. Why did I not receive a receipt for my filed application?

1. If you are traveling under advance parole, you are not required to have a H-1B stamp

A reader asks:
I scheduled an H-1B interview in mid-to-late August.  My H-1B is expiring, and I can’t file for extension until early August. I plan to enter the US using advance parole. Do I need to get H-1B stamped abroad? If I get a NOID or am denied and then go abroad to get H-1B, will it be too late?

Alan Lee, Esq. answers,
If you are traveling under advance parole, that is separate from H-1B and you are not required to have a H-1B stamp in your passport to return. I do not understand why you would go abroad to get a H-1B stamp if you are denied or obtain a notice of intent to deny (NOID). Perhaps you are thinking that you will overcome the NOID and the denial will pertain to maintenance of status in the US rather than the merits of the H-1B petition itself. In that case, you would likely have to reschedule the appointment at the consulate as the timing would likely not work out and the DS- 160 used to schedule the appointment would no longer be accurate.

2. Why did I not receive a receipt for my filed application?

A reader asks:
I filed for expedited NIW processing two months ago and still haven’t received the receipt notice. I first submitted in December 2025, but it was returned in Feb due to an expired form. I corrected it and resent the same day. Until now, I still haven’t received anything, and the check hasn’t been cashed. I did it myself and was later had a lawyer review the package. The lawyer said it looked fine. What could be wrong?

Alan Lee, Esq. answers,
There are a number of reasons for which you may not yet have received the receipt notice after returning the package with the correct form following rejection. You have said that you had a lawyer review the package, but a lawyer who is not working on the case may not give as much attention to it as one on which he or she is actually doing the work. You may have sent the package to the wrong address or given the wrong amount of payment or made mistakes on the forms. We have also heard recently that USCIS has not been particularly speedy in working on resubmitted cases. Hope that you hear something soon.

Article: Trump Administration Getting Ready to Rip the Roof off of America After Midterms

As published in the Immigration Daily on June 10, 2026

What do you do with $170 billion given to you for immigration enforcement under the Big Beautiful Bill in 2025? What do you do with the additional $70 billion on its way to completely fund ICE through Donald Trump’s second term in office after passing the critical Senate vote last week? The answer is to spend it on a mass deportation program not bounded by whether the deportees have criminal records nor restricted by the number of equities that they may have, e.g. long-term residence, steady jobs, contributions to the community, history of supporting family, familial ties to US citizens or permanent residents, etc. They will undoubtedly come after someone you know and like or a relative of that person.

What is holding up the process now? Possibly the backlash against ICE for its violent tactics lighting up the national media and killings of Americans Renée Good and Alex Pretti in Minnesota, but most probably concern and anxiety over the midterm elections and how scenes of chaos, mass arrests and deportations will affect the votes of Independents.

If the Supreme Court holds in favor of the Administration on the birthright citizenship issue, estimates are that 100 million persons could be deported. That would rip the roof right off of this country and weaken America immeasurably. Administration officials are contemplating deporting 100 million including almost 50 million US-born citizens. DHS posted an image of a sunny unpopulated beach with a vintage 1970s car in December with a caption that this would be the peace of a country no longer besieged by the Third World after 100 million deportations https://x.com/DHSgov/status/2006472108222853298 . Greg Bovino, the border patrol chief who retired after Minnesota, said that while leading border patrol’s interior operations, he had drafted a plan to deport 100 million people and when he reiterated his call for 100 million deportations at the Conservative Political Action Conference (CPAC) in March 2026, GOP political candidates echoed his call. https://www.theunpopulist.net/p/trump-isnt-just-after-undocumented Although the Solicitor General told the Supreme Court that Trump’s order would only apply prospectively to children born after it was signed, Justice Sotomayor pointed out that by the logic of his position, this president or the next president or Congress or someone else could decide it shouldn’t be prospective and then there would be nothing limiting that, according to the Solicitor General’s theory.

The White House appears to be preparing Americans for the mass deportations by dehumanizing undocumented immigrants in a May 28, 2026, video opening up in green lettering against a black background akin to a science fiction movie involving aliens, “They Walk Among Us”, and quickly moving on that the aliens are illegal aliens who should not be here and should be deported. “Aliens have been walking among us, living in our neighborhoods, and interacting with us in our daily lives. They’ve shopped in the same stores, attended the same classes as our children, and lived seemingly normal human existences… Millions arrived under the cover of darkness and embedded themselves directly into our society… President Trump was the first to call out the real danger Aliens pose to every American family, every community, and the future of our nation.” https://www.whitehouse.gov/aliens/?utm_source=substack&utm_medium=email . The video concludes with a number counter for “Encounters” presently over 3 million and an alien arrest map of those caught in various parts of the country.

The Washington Post reported that White House officials and House Republican leaders advised Republican members to avoid emphasizing the phrase “mass deportations” and instead focus on deporting violent criminals and public-safety threats. The report stated that this advice was given specifically in the context of the upcoming midterm elections. https://www.washingtonpost.com/politics/2026/03/10/trump-gop-deportations-midterms/?utm_source=chatgpt.com. In the March 2026 Republican congressional retreat in Doral, Florida, Deputy Chief of Staff James Blair and Republican Lisa McLain (R-Michigan), chair of the House Republican conference, instructed congressional members to avoid talking about sweeping deportations of undocumented and instead to focus only on deportations of violent criminals.

Republicans know that mass deportation scenes could lose them the midterms. A Reuters/Ipsos poll found that aggressive deportation policies could create political problems for Republicans in the midterms, particularly among independents. According to the poll, a majority of Americans—and an even larger share of independents—said they were less likely to support candidates associated with the administration’s deportation approach. Support for the administration’s handling of immigration reportedly declined compared to earlier in the term. https://www.reuters.com/world/us/trumps-deportation-push-could-cost-republicans-midterm-elections-reutersipsos-2026-04-22/?utm_source=chatgpt.com

The watchword is that people should not be lulled into thinking that the increased rhetoric of immigration enforcement against criminals and public safety threats and not others will hold after the elections. There is too much at stake for the President and his MAGA movement to not strike sharply at the hearts of immigrants and even birthright Americans if given the support of the Supreme Court. $240 billion is a lot of money that has to go somewhere, and particular areas for spending include constructing many more mass detention/deportation camps, purchasing a fleet of deportation planes, paying other countries exorbitant amounts to accept deportees that cannot be returned to their home countries, improving logistics in detaining and transporting detainees, mass hiring of ICE personnel, purchasing weapons, riot gear, ground transportation, and obtaining the newest state-of-the-art invasive AI products which can and already have been used against Americans.

The future is being written now, and it appears increasingly grim for a large number of those that we call our family members, neighbors and friends.

Alan Lee, Esq. Q&As published on the World Journal Weekly on June 7, 2026: 1. If a PERM were to begin today, it might not be completed within 21 months 2. You would violate H-1B status if you worked with the EAD for another employer 3. An individual self-petitions for the NIW, the case can continue even the individual has changed jobs. 4. It has usually taken much time in the past for the agency to work on a returned case

1. If a PERM were to begin today, it might not be completed within 21 months

A reader asks:
I just received an email from my company stating that our PERM process is being temporarily suspended due to current market conditions, with no definite timeline for resumption. My Prevailing Wage Determination (PWD) has already been approved, and we are currently in the recruitment advertising phase—which began in March—so it is highly likely that we will be unable to proceed with the standard filing. My H-1B visa is set to “max out” (reach its six-year limit) in October of next year. When I initiated the green card process, the company agreed to sponsor me only under the EB-3 category, as EB-2 sponsorship is reserved exclusively for employees at the Senior Manager level or above. My employer is a global consulting firm. Currently, the business within my specific department remains stable, my individual performance is strong, and I am leading a small team. I never expected such an abrupt turn of events. Could you please offer any viable strategies or options I might consider?

Alan Lee, Esq. answers,
Under the circumstances where it appears that your H-1B max out is next October (21 months from the date of this answer), and you seem fairly certain that filing on schedule will be impossible due to the PERM processing being paused by the company with no clear restart date, you can either try to further discuss this with the company, or if truly dissatisfied, attempt to move on to another organization with the understanding that it will begin the PERM process for you as soon as possible. If a PERM labor certification application was to begin today, it is highly doubtful that it would be completed within 21 months even if everything went well. But perhaps with your company or another organization, you could make plans as to how you could cover the time gap in status under which you would not be covered by an H-1B approval. Good luck.

2. You would violate H-1B status if you worked with the EAD for another employer

A reader asks:
I used to think once I used my EAD, I could not return to H-1B. But ChatGPT told me that once I re-entered the US using the combo card, I would become a parolee and can work for my employer.  If I lose my job, the 60-day H-1B grace period doesn’t apply.  I can even collect unemployment benefits or work for another employer using EAD. And if I want to go back to H-1B, an employer just needs to file a transfer.  So I can freely use EAD during I-485 pending and not worry about getting back on H-1B if I-485 is denied.  Is this understanding correct?

Alan Lee, Esq. answers,
No, unfortunately your understanding is not correct as you would be in violation of H-1B status if you worked with the EAD for another employer. The USCIS guidance appears to allow H-1B holders to reenter the US under parole and then file for extension of H-1B status inside the US through the same employer. It does not contemplate free open market EAD employment and then being able to switch back to H-1B status inside the United States.

3. An individual self-petitions for the NIW, the case can continue even the individual has changed jobs.

A reader asks:
My National Interest Waiver (NIW) petition—which was sponsored by a previous employer—was approved. However, I subsequently changed jobs. Do I need to file a new I-140 petition now? I saw a post on LinkedIn claiming that one must re-file the petition independently in such cases. Could you please confirm whether this is true?

Alan Lee, Esq. answers,
Where a previous employer sponsored an approved NIW and the beneficiary changes jobs, a new I-140 petition must be filed. Where an individual self-petitions for the NIW, the case can continue even where the individual has changed jobs.

4. It has usually taken much time in the past for the agency to work on a returned case

A reader asks:
I applied for an EB-1A visa, and my I-140 petition has already been approved. I proceeded to the U.S. Consulate in Hong Kong to apply for my immigrant visa. In January, I attended my interview at the Hong Kong Consulate but was refused on the spot. My status was updated to “Refused,” and in March, it was updated to “Returned to NVC.” Does this constitute a Notice of Intent to Revoke (NOIR)?

Alan Lee, Esq. answers,
Where a US consulate updates case status to “Returned To NVC”, it means that the consulate has or will send your case back to USCIS. An Immigration officer will look over your case along with notes from the consulate and either reaffirm the decision or send you a notice of intent to revoke. It should be noted that these are low priority cases with USCIS, and it has usually taken much time in the past for the agency to work on a returned case. Good luck.

Alan Lee, Esq. Q&As published on the World Journal Weekly on May 24, 2026: 1. You recently changed jobs, and you may wish to push the company to begin your PERM application as soon as possible 2. I submitted my I-485 application recently and was laid off today. What should I do now?

1. You recently changed jobs, and you may wish to push the company to begin your PERM application as soon as possible

A reader asks:
I recently changed jobs, and my immigration application’s priority date (PD) is early January 2023, and Chart B is about one year from becoming current. Now, PERM seems hard to process at the company, and the default path is NIW. I only have a master’s degree and nothing else, just 5+ years of experience in AI (Artificial Intelligence) and ML(Machine Learning), and my current position is also in the MLE (Machine Learning Engineer) field. However, my lawyer said that the risk of expedited processing is significantly higher.   The company is likely to support both PERM & EB2 – NIW. I feel NIW-EB2 approval odds are already low. If my first NIW application is denied, should I immediately push to start PERM?

Alan Lee, Esq. answers,

I assume from your fact pattern that you already have an approved I-140 petition with 2023 priority date from your prior job. As you are acknowledging the difficulties of the NIW petition and your lawyer is telling you that the risk of expedited processing is significantly higher, that shows a lack of confidence in both of you in the merits of the NIW case. As such, unless there are factors of which I am not aware, you may wish to push the company to begin your PERM application as soon as possible and not wait until the NIW is denied.

2. I submitted my I-485 application recently and was laid off today. What should I do now?

A reader asks:
I was laid off today; at least the suspense is over. I submitted my I-485 application this January, and there are less than three months left before the 180-day mark. Our team just had a massive layoff, cutting half the headcount in half, and I was one of those let go. I have no news on the green card application, and haven’t even received my I-765 or EAD yet. I switched to this company and started a new PERM, filing the I-140 and I-485 concurrently, both have been pending for under 180 days. My 6-year H-1B period is used up and I can now renew only year by year.  I’ve heard that in this situation a new employer can’t keep extending the H-1b and can only wait for the green card or EAD to be approved.  What should I do now? Could I negotiate with the company to pay out the severance gradually through payroll each month, so that if USCIS interviews me, I can show pay stubs and pretend I’m still on the job?

Alan Lee, Esq. answers,
Unfortunately, where the I-140 petition has not even been approved and an individual loses the position with three months to go before the 180 day mark, we cannot state that the matter can be salvaged, as the employer clearly has no intent any longer to offer a permanent full-time position. You say in your fact pattern that you switched to this company and started a new PERM, and that raises a question as to whether you already have an I-140 approval from a prior employer. If so, you may be able to use that once with a new employer to gain a year with a new H-1B while contemplating your next steps.

Alan Lee, Esq. Q&As published on the World Journal Weekly on May 10, 2026: 1. If the NIW was company-sponsored, losing your position may have more serious consequences

1. If the NIW was company-sponsored, losing your position may have more serious consequences

A reader asks:
I recently filed my I-485 application, but my company’s business operations have become somewhat unstable. I am concerned that potential unemployment might negatively impact my I-485 case. My question is: if my I-485 application is based on a National Interest Waiver (NIW) petition, am I permitted to be unemployed while the application is pending?

Alan Lee, Esq. answers,
Assuming that the NIW is through self-petition, losing the job in the I-485 stage may not tremendously affect the application although you may still have to show that you remain committed to the type of work upon which the NIW petition is based. If the NIW was company-sponsored, losing your position may have more serious consequences although you may still be able to port your case to a same or similar position if the I-140 has been approved and the I-485 application pends for 180 days or more.

Alan Lee, Esq. Q&As published on the World Journal Weekly on May 3, 2026: 1. Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas 2. You can only file I-485 straightaway if both the job location and the legal entity are unchanged

1. Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas

A reader asks:
A friend’s I-485 is currently pending, but already received both EAD and I-131 (separate cards), and is just waiting for his priority date to become current. He is currently working on an O-1 visa (without a visa stamp due to change of status within the U.S.) and recently got selected for H-1B.  His lawyer said he must change to H-1B status in October and only then can he travel abroad for stamping.  If he leaves the U.S. before October while still on O-1, will USCIS consider that as abandoning the I-485? Even with advance parole? Also, they he cannot travel on O-1 before October, can he go out after October, get the H-1B visa and return using it?  Would that invalidate the I-485?

Mr. Alan Lee, Esq. answers,
Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas, an applicant must change status in the US prior to going outside the US to escape paying the fee. That is why your lawyer is insisting that you remain in the US until October because that is when the change of status becomes effective. If afterwards you leave the US, such would not be considered an abandonment of the I485 since H1B holders can leave and return to the US during the pendency of I485 applications. Your friend could also leave under advance parole, and that would not invalidate the I485 application. If your friend leaves the US before October while still on O-1, USCIS would consider that as abandoning the I485 if attempting to come back in on the O-1 petition.

2. You can only file I-485 straightaway if both the job location and the legal entity are unchanged

A reader asks:
Because the PERM labor certification for my new company has been significantly delayed, yet my Priority Date (PD) is currently “current” (available), I recently reached out to my previous employer and received a job offer. However, the work location has changed (moving from San Francisco to New York). May I ask: under these circumstances, can I use my original I-140 petition to directly file my I-485 application? I understand that the prerequisite for directly filing an I-485 based on a previous petition is typically that both the work location and the legal entity (employer) remain the same. Is it possible to directly file an I-485 if the work location has changed, but the legal entity remains the same?

Alan Lee, Esq. answers,
Unfortunately, what most people say is correct – that you can only file straightaway if both the job location and the legal entity are unchanged. Perhaps your former employer is still able to offer you a position in San Francisco. If so, it would declare on form I-485 J supplement, “Confirmation of Valid Job Offer or Request for Job Portability under INA Section 204 (J)” that it has an existing valid job offer for you in San Francisco. If you work for the company in San Francisco for a period of time after obtaining permanent residence and the company at a later point decides to transfer you to New York, that is another story.

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 26, 2026: 1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days 2. How can one successfully apply for an EB-1A visa?

1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days

A reader asks:
My company helped me file an EB-1A petition under Premium Processing (PP), but we subsequently received a Request for Evidence (RFE)—the deadline for our response is in May. Since the company is the petitioner, the preparation process for much of the documentation has been opaque to me. I feel that the law firm collaborating with the company is particularly unreliable and that the application they prepared is of very poor quality. However, they are unwilling to withdraw the petition and insist on preparing the RFE response themselves. I simply cannot bring myself to trust them. My question is: can I now file a new petition on my own (DIY)? In this new filing, I would act as the petitioner; I would personally draft the petition letter and compile the exhibits, which would presumably differ from the materials prepared by the company. I intend to use Premium Processing for this new filing as well. Consequently, the timelines for the two cases would overlap—essentially, one case would be pending an RFE response, while the other would be a brand-new submission. The company has refused to show me the actual application package they prepared; from start to finish, I merely provided them with certain supporting documents and recommendation letters. Therefore, I am confident that if I handle the filing myself, my petition letter and exhibits will definitely differ from the ones they wrote. Since the petitioner would be different, there would be distinct differences between the two cases. Would this be considered a “duplicate filing”? (Note: I already have a pending NIW petition, as I anticipated that the EB-1A petition filed by the company would likely be denied.)

Alan Lee, Esq. answers,
It appears that you have two balls in the air and you want to put up a third. This could prove confusing, but I cannot say that putting up a personal EB-1A petition for yourself under premium processing would not work if you are truly qualified for the category. Please note that paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days. Where a case is complicated, USCIS may well hold onto the case and begin adjudicating it in its good time. Afterwards, you would likely have to request back the premium processing fee as the agency has a history of not automatically refunding it if it does not reach the case within the time limit. Also that USCIS may reach a case within 15 business days, and that it would fulfill its obligation under premium processing by issuing a request for evidence or notice of intent to deny or approval or denial.

2. How can one successfully apply for an EB-1A visa?

A reader asks:
I hold both a bachelor’s degree and a Ph.D. from one of China’s top two universities, with a brief master’s degree program in continental Europe sandwiched in between. I currently work in the investment banking division of a securities firm, focusing on IPOs and M&A transactions; however, I have not published any academic papers or engaged in other similar scholarly activities. I am considering applying for an EB-1A (Extraordinary Ability) visa. Given my current profile and circumstances, do I have a realistic chance of success?

Alan Lee, Esq. answers,
Generally speaking, a person with your bare-bones fact pattern would not seem to be a great candidate for the EB-1A extraordinary alien category, and as you are aware, the current climate is not encouraging. We suggest that you look through all 10 criteria of the EB-1A category, and pick out at least three that you can say that you qualify under. Then you may wish to make an appointment with an immigration lawyer familiar with EB-1A filings and consult him or her with your portfolio or a detailed resume. Just from your facts, one cannot say definitively whether you could or could not qualify.

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 12, 2026: Someone would rarely ask for another EAD when he/she has one valid until 2030

Someone would rarely ask for another EAD when he/she has one valid until 2030

Reader asks:
My H-4 extension has been approved, but I received an RFE from USCIS for my H-4 EAD application. It says I already have an EAD valid until 2030 (this is the I-485 EAD I received a few weeks ago). They are asking why I am applying for another EAD (under the C29 H-4 category). I’m confused because the notice only gives me three options to choose from:

  1. The EAD card was lost or damaged.
  2. The information on the EAD card is incorrect and needs to be corrected;
  3. I want to withdraw this current application because I already have a valid EAD.

So, does having an I-485 EAD mean I can no longer apply for an H-4 EAD extension? Or did USCIS make a mistake by not recognizing that these are two different types of EADs? I want to write a letter to explain that this application is for the H-4 EAD because I don’t intend to use the I-485 EAD for now, and I don’t want to choose any of the three listed options. Is it okay to respond like this?

Mr. Alan Lee, Esq. answers,
We have seen situations in which individuals have held 2 EADs, but it is rare that someone would ask for another EAD when he or she has one valid until 2030. USCIS may be concerned about security (whether someone other than you could somehow use one of the cards) or if there is any problem with your I-485 application. Your explanation is probably as good a reason as any at the present and it will be up to USCIS whether it will issue the H-4 EAD.

IMMIGRATION NEWS THAT YOU CAN USE – PREDICTION ON SECOND ROUND OF H-1B SELECTIONS; PREVAILING WAGES LEVEL I-LEVEL IV SET TO LEAP UNDER NOTICE OF PROPOSED RULEMAKING; HABEAS CORPUS AND THE RIGHT TO BRING UP CONSTITUTIONAL ISSUES TO AN IMMIGRATION JUDGE.

As published in the Immigration Daily on April 10, 2026

As published in the World Journal Weekly on May 10, 2026, in Chinese

  1. Prediction on Second Round of H-1B Selections.

With the FY-2027 cap H-1B March selection completed, it appears from anecdotal evidence that the selection percentages as set out by USCIS in the weighted wage rule giving more opportunities (more lottery balls) to those organizations willing to pay beneficiaries on a higher wage level were incorrect. It had estimated odds for this year of level I – 15.29%, level II – 30.58%, level III – 45.87%, and level IV – 61.16%. (page 60948 of the Federal Register final rule, https://www.govinfo.gov/content/pkg/FR-2025-12-29/html/2025-23853.htm.) We believe that the final statistics will show higher percentages of approval. On the possibility of a second round of selections in July, we believe that there is a very distinct chance of this occurring. This depends upon whether many organizations actually go through with submitting H-1B petitions by June 30, 2026. On the one hand, there would appear to be more incentive for employers to file since they have already paid a $215 registration fee. On the other hand, some employers may have boxed themselves in with wages and SOC codes that they cannot realistically support. Also, it may well be that many organizations submitted H-1B registrations without fully taking into account or hoping that the $100,000 H-1B fee attached to those beneficiaries who are overseas or fail to successfully obtain a change of status to H-1B will be overturned by the courts. They may reconsider their commitment to file if there is no rule change. On the present status of the fee litigation, the District Court in Chamber of Commerce of the USA v. U.S. Department of Homeland Security, No. 1:25-cv-03675 (D.D.C. Dec. 23, 2025), upheld the fee and an appeal is currently in the DC Court of Appeals. The other two major cases, State of California v. Noem, 1-25cv-13829 (D.Mass.) and Global Nurse Force v. Trump, 4:25-cv-08454 (N.D.Cal.) remain pending.

  1. Prevailing Wages Level I-Level IV Set to Leap Under Notice of Proposed Rulemaking.

The proposed regulation, “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States”, Federal Register, vol. 91, No. 59 (3/27/26), https://www.federalregister.gov/documents/2026/03/27/2026-06017/improving-wage-protections-for-the-temporary-and-permanent-employment-of-certain-foreign-nationals  will raise prevailing wage levels I-IV excessively. Level I wages would move from the 17th percentile to the 34th percentile, level II from 34th to 52nd, level III from the 50th to 70th, and level IV from the 67th to the 88th. In practice, level I would be the most impacted with an approximate 33% jump in wages redefining entry-level somewhere closer to experienced/junior mid-level; level II will see an approximate 24% increase, level III 21%, and level IV 22%. Arguments against the proposal include DOL not sufficiently justifying why these specific percentile thresholds are appropriate; that the new wages based on the percentiles do not correspond to “prevailing wages” and in many cases exceed it; that it eliminates true entry-level wages; and promotes economic harms such as offshoring and reduced hiring by employers. Comments can be made electronically before May 26, 2026, to the Federal eRulemaking portal: https://www.regulations.gov. Commenters should identify the agency’s name and public docket number ETA-2026-0001, explain the reasons for any recommended changes, and reference the specific section and wording being addressed where possible.

  1. Habeas Corpus And The Right to Bring Up Constitutional Issues to an Immigration Judge.

Mahmoud Khalil, the permanent resident Columbia University protester who was seized and transported to Louisiana and later freed by the District Court in New Jersey through habeas corpus, had the habeas decision overturned in a Third Circuit panel decision on January 15, 2026 https://www.aclu.org/cases/khalil-v-trump?document=Order-Vacating-District-Court-Judgement. The decision is a huge blow against the use of habeas corpus petitions in immigration settings, the court saying that the INA does not allow immigrants to challenge by habeas corpus issues that can be reviewed in a petition for review at the circuit courts following disposition of the case by the immigration court and BIA. The exception is where the claims behind the habeas petition are “now or never” ones that would otherwise never come up for review. His legal team is now petitioning for en banc review and asking the new Third Circuit judge, Emil Bove, to recuse himself on grounds that that he was likely involved in decisions related to the case while at the Department of Justice. He was previously President Trump’s personal attorney handling matters including the hush money criminal case before Mr. Trump appointed him to the Department of Justice position and subsequently nominated him to the Third Circuit judgeship https://www.nytimes.com/2026/04/01/nyregion/mahmoud-khalil-columbia-appeal.html . As a Trump loyalist, he will likely refuse to recuse himself.

A pivotal issue brought up by the dissent in the panel decision concerned the ability of the circuit court in Khalil’s case to meaningfully look at  the claimed violation of his First Amendment free speech rights since the immigration judge (IJ) held that she lacked jurisdiction to rule on constitutional challenges and so there was no opportunity to develop the record on that issue, particularly as the IJ repeatedly  denied his requests to do so. As disclosed in the dissent, the most interesting part of this discussion arose in oral argument before the panel when the government for the first time produced a September 2025 policy memorandum that immigration judges “may generally consider arguments arising out of constitutional law.” https://www.justice.gov/eoir/media/1413276/dl?inline  Prior to the agency memo, it had always been taken for granted by both DHS attorneys and respondents that neither immigration judges nor BIA would take up constitutional questions.

So it would appear that this could be used by lawyers to ask IJs to actually rule on constitutional issues although most immigration judges as members of the executive branch would likely decline to do so. It also seems a pity that the memorandum was apparently used here merely to give cover to the government attorney arguing before the court.

Alan Lee, Esq. Q&As published on the World Journal Weekly on April 5, 2026: If I am not selected in the H-1B lottery, can I apply for PERM?

If I am not selected in the H-1B lottery, can I apply for PERM?

Reader asks:
My husband found a job and the company helped apply for H-1B, but he hasn’t been selected in the lottery for three rounds. We are feeling hopeless.  I suddenly thought – can we skip the H-1B lottery and have the company file a PERM instead, while staying in the U.S.? My husband was born in South Korea, so there should be no backlog. Can someone on TN status directly file a PERM?

Mr. Alan Lee, Esq. answers,
Unfortunately, H-1B registration is not guaranteed, and it is not unusual that individuals can go multiple rounds and years in the H-1B lottery without being selected. It is best that individuals keep trying as we have seen persons who have failed multiple times finally be selected. If selected, H-1B holders can remain in the US for up to six years and perhaps even longer under such status. On your specific questions, the company can file a PERM application while you and your husband are staying in the US. Your husband would have to maintain legal non-immigrant status if he wishes to adjust status at the end of the process. A person on TN status can directly file for PERM, but that individual should be aware that travel outside the US even to Canada during the process may give him problems on entry  as as there is stricter vetting at the borders and TN unlike H1B requires non-immigrant intent.