Author: Alan Lee

Alan Lee, Esq. Q&As published on the World Journal Weekly on June 1, 2025：1. I-485 is pending, we suggest not staying out of the US more than 90 days 2. Check the processing times of the office(s) having jurisdiction over your I-485

1. I-485 is pending, we suggest not staying out of the US more than 90 days

A reader asks:
My I-485 is pending, and it will probably take about 5 years until Form A is available. Currently, I have AP and EAD cards, and I still have a job in China. Can I go back to the US every six months for 2 weeks to utilized my cards? Lawyers have different opinions. There is no law that explicitly stipulates how long one must live in the US. My lawyer recommends that I should not leave the US for more than 180 days. However, some lawyers also recommend that one should not leave the US for more than 90 days, and should stay in the US for more than 183 days each year and be a tax resident. Can I really use my AP and EAD cards until my I-485 is adjudicated? How big is the risk? Will I be stopped when entering the US, or it will cause my I-485 be rejected? It seems that as long as I go back to the US every 4 to 5 months and have evidence I am willing to stay in the US and I should be ok, correct?

Alan Lee, Esq. answers,
You are correct that lawyers have different opinions of how long individuals with advance parole based on I-485 can remain outside the United States. We tend to be conservative and would recommend the same as some lawyers that you say suggest not staying out of the US more than 90 days. We are entering a new age of restriction in immigration law under the Trump administration and risks that may have been acceptable under the Biden administration may be much riskier given the turn in DHS attitude from benefits granting to enforcement that we are now starting to see.

2. Check the processing times of the office(s) having jurisdiction over your I-485

A reader asks:
My I-485 has been lying on NBC since I submitted the form in January, and there is no news about I-765 and I-131. Am I in a black hole?

Alan Lee, Esq. answers,
I doubt that you have fallen into a black hole. USCIS has processing times for everything, although it had said that was decreasing the time for EAD applications submitted with 1-485’s. That being said, you can check the processing times of the office(s) having jurisdiction over them. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and 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.

Alan Lee, Esq. Q&As published on the World Journal Weekly on May 18, 2025：1. Adjudication of an I-140 petition depends more upon the company’s situation 2. Questions may be asked at the I-485 adjudication regarding why you no longer work for company 3. I-485 may be strictly reviewed if you return to the company you left 4. I-140 processing time is less than 350 days at two service centers

1. Adjudication of an I-140 petition depends more upon the company’s situation

A reader asks:
I work in an educational consulting management role at a startup. My PERM application was submitted in September 2023, but I have not received any update so far. I am anxiously waiting, but unfortunately, I was laid off by the company. The company is willing to keep me on the payroll for a short period, but not for long, and will help me complete the I-140 process. The company is currently facing difficulties, but it may recover in a few years, so they might be willing to file my I-485 at that time. The EB-2 process started 3 years ago, and I really want to retain my Priority Date (PD) at this final stage; otherwise, all previous efforts would be in vain.

My question is:

  1. What should I do now? If I leave the company now, will it affect the I-140 application?
  2. Previously, the company adjusted my salary to meet the Department of Labor’s requirement because the company’s profit were insufficient. If I leave before the I-140 is filed, will it affect the approval probability of I-140? The payroll duration will be short.  If the PD becomes current in 3-4 years and the company is still willing to help me complete I-485, what should I do?
  3. I’ve heard that after getting a green card, one needs to work for the employer for more than six months. The company is reluctantly willing to file  I-485 or process the immigration visa abroad but may not be willing to employ me for six months. What should I do in this situation?

Alan Lee Esq. answers,
Under the law, a company should not sponsor someone under an I-140 petition that it has no intention of hiring as a permanent employee at the time that permanent residence is approved. That being said, adjudication of an I-140 petition depends more upon the company’s financial state and whether the beneficiary meets the qualifications of the PERM labor certification. Questions having to do with leaving the company now have more relevance at the time of application for adjustment of status or immigrant visa processing overseas. At that point, questions may arise concerning your leaving the company and the bona fide character of the sponsorship. To your other question, a good idea is that the successful applicant for immigration based upon labor certification should remain with the company for six months. However, US immigration law is not a license for bondage, and so the time may be shorter to remain with the company if there is good reason for a short time of employment.

2. Questions may be asked at the I-485 adjudication regarding why you no longer work for company

A reader asks:
If the petition letter mentions many things I did for the company, but when the PD becomes current, I am no longer with the company or am unemployed, can I still use this I-140 to submit I-485, or process an immigrant visa abroad? Will it be questioned by the immigration officer?

Alan Lee Esq. answers,
I assume for purposes of your question that the I-140 petition has already been approved and that you are waiting for the priority date to become current. Only if the company has a bona fide intention to hire you at the end of the process under the same terms as stated in the labor certification application and/or immigrant visa petition should you use the I-140 petition approval to submit the I-485 or process for immigration visa overseas. Kindly note that questions may be asked at that time of final adjudication as to the reasons for which you are no longer working for the company and why the company would continue sponsoring you for the green card anyway.

3. I-485 may be strictly reviewed if you return to the company you left

A reader asks:
I left company A three years ago and switched to company B. When I was at company A, my I-140 had been approved and I was waiting in line to submit my I-485. Now, company B is helping me apply for a green card perm. The final materials are ready to be submitted and the PD is current. A contacted me and hoped that I could go back. If I go back to A, can I directly submit I-485? Or do I need to do a new perm? A’s I-140 should not be revoked.

Alan Lee Esq. answers,
If company A did not timely revoke the 1-140 petition and is indeed offering you the position again, you may be able to directly submit the 1-485 application without going through the PERM labor certification process once again. Please note that USCIS may take a harder look at your case as to whether it is a bona fide situation of an employer actually wanting you back or an employer just attempting to accommodate your desire to obtain permanent residence. The three-year period of time that you have been away from the company may be very concerning to an officer.

4. I-140 processing time is less than 350 days at two service centers

A reader asks:
I submitted an I-140 for EB-3 before, and I was obsessed with not applying for an accelerated application at my own expense. I have been waiting for 350 days without realizing it, and the status is still “case was received”. I would like to sincerely ask for some advice. Should I continue to wait and see if there will be an update soon, or should I give up the fantasy of self-funded PP?

Alan Lee Esq. answers,
According to the latest timelines of USCIS, the two service centers processing 1-140 petitions were doing so for 80% of their cases at 8 months for Nebraska and 5.5 for Texas. These dates are far below 350 days. If your case has not been adjudicated by this time, you may file an eRequest (https://egov.uscis.gov/c-requcstrlntro.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. Alternatively, the petitioner (not you) can submit an application for premium processing on form 1-907.

Alan Lee, Esq. Q&As published on the World Journal Weekly on May 11, 2025：An F-1 applicant has to be able to demonstrate intention to depart after the studies are finished

An F-1 applicant has to be able to demonstrate intention to depart after the studies are finished

A reader asks:

I hold an F-1 visa, which has expired, and I am now on OPT. The company applied for H-1B, but it was rejected several times. I have submitted a National Interest Application (NIW) application, which is under review. I am considering returning to China at the end of the year and interviewing for F-1. USCIS updated its policy on F and M visas in December 2023, allowing students to apply for green cards during their studies without affecting their status. When I think about staying here alone during the Christmas holidays, I can’t help but want to go back to China. At present, the case I have seen is that after the I-140 is passed, there is no problem traveling to and from the United States with a valid F-1. I want to ask if there is any risk in going back for an F-1 interview during the review period after submitting a green card application?

Mr. Alan Lee Answers,
The December 2023 guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay. However, the guidance is not a guarantee that an F-i visa will be issued. An applicant still has to be able to demonstrate intention to depart after the studies are finished.

In addition, the election of Donald Trump is concerning as he has a negative stance on immigration and has a raft of executive orders including many supposedly in the field of immigration which may make the usual immigration processes more difficult. I note that some colleges and universities have already advised their students not to take trips overseas during the Christmas break because of the enhanced risk of problems in returning.

Article: NONESSENTIAL TRAVEL OUTSIDE THE US NOT RECOMMENDED, ESPECIALLY FOR NONIMMIGRANTS.

As published in the Immigration Daily on April 25, 2025

International travel remains in the bull’s-eye of the Trump Administration’s crackdown on opposing views and nonimmigrants have less rights on entry than permanent residents, although even some of the latter are also being targeted for removal. Generally, entering nonimmigrants can be removed by Customs and Border Protection (CBP) without immigration court proceedings unless they request political asylum under which they could be relegated to expedited removal proceedings. Permanent residents who contest admissibility are entitled to a hearing before the immigration court in most situations.

This comes about through President Trump’s national security campaign promise and his Executive Order 14161 for enhanced screening and vetting across government agencies to “identify all resources that may be used to ensure that all aliens seeking admission to the United States, or who are already in the United States, are vetted and screened to the maximum degree possible….” DCPD-202500128.pdf

Applicants for visas at US embassies and consulates face enhanced vetting there and also by Customs and Border Protection at the borders when they enter the US. Nonimmigrants in the US with visas who do not have to visit consular posts or are visa exempt, e.g. Canadians, are experiencing more frequent and more intrusive inspections and questioning than in the past. The crackdown has even moved inland with over 300 nonimmigrants in the country having their visas revoked with some being detained in a major escalation of enforcement with Secretary of State Marco Rubio saying that visa holders charged with a crime while in the United States should automatically lose their visa. https://www.nytimes.com/2025/03/28/us/politics/rubio-immigration-students-ozturk-chung-khalil.html (In the past, nonimmigrants having their visas revoked by the State Department were usually allowed to remain in the US with the revocations taking effect upon their leaving).

Especially targeted now are individuals requesting initial or renewal visas in the student and exchange visitor categories. A number of recent articles have covered Secretary of State Marco Rubio’s unpublished 1700 word cable on March 25, 2025 titled “Action Requests: Enhanced Screening and Social Media Vetting for Visa Applicants” describing the process consular officers must follow when reviewing M, F, and J student and exchange visitor visas. Consular officers are to refer certain student and exchange visitor visa applicants to the fraud prevention unit for a mandatory social media check. Those to be scrutinized are:

  • Someone suspected of having terrorist ties or sympathies.
  • Who had a student or exchange visa between 10/7/23 and 8/31/24.
  • Who has had a visa terminated since that October date.

It appears that criticism of President Trump or Israel might be sufficient grounds for visa denial. Consular officers are to deny where applicants demonstrate “a degree of public approval or public advocacy for terrorist activity or a terrorist organization,” which could be evident in “conduct that bears a hostile attitude toward US citizens or US culture”.

This also appears part and parcel of an Administration policy of making encounters with CBP and ICE more volatile, escalatory and humiliating than in the past in detaining and removing visitors from abroad upon entry under visas other than student and exchange visitors https://www.rsn.org/001/im-the-canadian-who-was-detained-by-ice-for-two-weeks-it-felt-like-i-had-been-kidnapped.html; https://www.cnn.com/2025/03/18/us/rasha-alawieh-brown-university-wwk/index.html ; revoking visas and attempting to remove those with legal status for even a DUI in the past https://thehill.com/homenews/education/5225218-university-of-minnesota-ice-arrest-visa-revoked/; and even scrutinizing the backgrounds of green card holders and detaining them for political activities and past minor infractions of law. https://www.nytimes.com/2025/03/28/us/politics/rubio-immigration-students-ozturk-chung-khalil.html ; https://www.cbsnews.com/news/yunseo-chung-columbia-student-south-korea-ice-deportation/; https://www.wbur.org/news/2025/03/19/new-hampshire-fabian-schmidt-ice-detention  

In a letter to the editor of the Washington Post on April 5, 2025, titled “not what I voted for,” the writer indignantly states that “A German friend of my son recently flew to Boston and was put in a room for two hours by immigration officials. She told my son that they searched her belongings, unlocked her phone and looked at all of her messages and photos trying to find any negative comments about Trump so they could send her back to Europe. Some of my own friends have also heard such stories. Some of these people have green cards. News like this is spreading in Europe, and people are canceling trips.” https://www.washingtonpost.com/opinions/2025/04/03/tufts-university-ice-arrests-letters/?utm_source=chatgpt.com

Also to watch out for is the looming travel ban of which final details are not known, but a draft of which includes 43 countries deemed red with a complete travel ban, orange for sharply restricted travel in which people traveling on immigrant or tourist visas might not be able to enter and be subject to mandatory in-person interviews to receive a visa, and yellow in which the countries have 60 days to address concerns including providing insufficient information on incoming travelers, inadequate security in issuing passports, and selling citizenship to persons from banned countries. https://www.newsweek.com/trump-travel-ban-list-2045321 It is not been established whether the ban will apply to persons already holding permanent resident cards.

Further, the Department of State under Mr. Rubio is now using the visa revocation authority as being against US interests capriciously with the latest target being South Sudan. Last Saturday, in revoking all visas for nationals of that country, he said,  “effective immediately, the United States Department of State is taking actions to revoke all visas held by South Sudanese passport holders and prevent further issuance to prevent entry into the United States by South Sudanese passport holders.” The reason: that country refused to accept a deportee from the US – and the reason that it refused was that the deportee was not South Sudanese, but a national of the Democratic Republic of Congo. https://www.upi.com/Top_News/US/2025/04/08/South-Sudan-deport-visa-revoke/8401744112006/

Given all of the above showing crackdowns on nonimmigrants on all levels whether outside or inside the country, that nonimmigrants entering the country have almost no rights and can be easily detained and removed at ports of entry, the looming travel ban, and capricious use of power in immigration matters by this Administration, visa holders in the US may wish to consider the dangers of nonessential travel before booking passage to visit family, get away on holidays, go home during school breaks, or any myriad number of reasons. Those who have changed status to longer-term nonimmigrant statuses in the US may think twice before booking visa appointments at US consulates abroad to have visas stamped in their passports as visas are only for travel and USCIS change of status approvals are sufficient to allow individuals to remain legally in the US. To be caught outside the US when the travel ban comes down (if subject to it) could be a life altering disaster to some. It appears clear that this Administration is willing to sacrifice US travel, tourism and foreign student revenues, and international goodwill to achieve its political aims.

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 30, 2025：1. There are remedies for EB-1A rejections 2. Frequent EB-1A applications do not help approval rates 3. H-1B with 30 days left to apply for expedited processing 4. Contact the USCIS to check whether the I-485 is approved 5. Proof of non-immigrant intent is still required for I-140 applications under OPT 6. After I-140 is approved, you can enter the U.S. with an O-1 visa

1. There are remedies for EB-1A rejections

A reader asks:
I am in the field of new energy materials. When I submitted my professional immigration application a year ago, my citations were around 2,300. At that time, I was about to join a R2 elementary school as a teacher. I found a lawyer and submitted EB-1A and NIWNIW, but I only received the RFE reply recently. The lawyer mentioned 4 standards: published academic papers (36 SCI papers) and books and monographs (4 papers). The officer only recognized the review, saying that the professional information provided was incomplete, the author circulation was missing, or my work was not provided, etc. In fact, every report mentioned my name and school unit, and there were also links to published articles, which I highlighted. The officer did not recognize that my research work was original and important. I have 5 recommendation letters from professors in this field, which discussed my work in detail, and two recommendation letters were ignored. The lawyer said that the recommendation letters were not prepared enough. The last reply is the most outrageous. The officer ignored my 36 papers, some of which I co-authored as the first author of top publications, and some of which were recognized as high-impact books in interdisciplinary fields such as Nature Energy. The officer said in general that some of them were non-academic publications and that the audience of publications should be ordinary people. The lawyer said that he had never read such a thing in his 30 years of practice and felt very bad. I will prepare a response with my best efforts, but I also want to know what to do if the result is not good?

Alan Lee Esq. answers,
From your fact situation, it appears that you have received the RFE on the E13 1A petition. Unfortunately, USCIS examiners have been known to give difficulties in extraordinary alien cases, and in one instance, even denied such recognition to an applicant who had an Oscar award. I imagine that you and your attorney will work hard to respond to the RFE, and the EB1A petition can hopefully be approved. If the EB1A is denied, you can wait and see what happens with the NIW petition, or you can take up options of a motion to reconsider, motion to reopen if you have new evidence of achievements predating your priority date, appeal to the USCIS Administrative Appeals Office and then to the federal court if you wish to take it further, or sue directly in the federal court. Another option is to refile your petition, but note that you must inform USCIS on the Ii 40 petition that you have previously filed a petition.

2. Frequent EB-1A applications do not help approval rates

A reader asks:
I am a doctoral student and want to apply for EB-1A, but my case is weak. In order to avoid the discretion and bias of immigration officers on the same case, I have come up with a solution, which is to submit an application every 3 months so that the case can be sent to different immigration officers to increase the approval rate. Is this a reliable approach?

Alan Lee, Esq. answers,
Unfortunately, this does not sound like a good strategy. Besides USCIS being able to track all the cases which are being filed, page 3, part 4, question 8 of the I-140 petition asks “Has any immigrant visa petition ever been filed by or on behalf of this person?” Filing as many petitions as you contemplate (once every three months) is almost certain to attract unwelcome attention.

3. H-1B with 30 days left to apply for expedited processing

A reader asks:
I am currently working at a school, and my OPT will expire at the end of March 2025. Should I convert my OPT to H-1B first and then submit I-485, or should I submit I-485 and I-765 first and then use the new EAD, then convert to H-1B?

Alan Lee, Esq. answers,
The answer to your question appears to involve timing as this question is being answered when you have approximately 30 days of time left on your OPT. Any of your strategies is workable, but if you have not already begun, you will probably have a gap in your ability to work unless your choice is H-1B with premium processing. (I assume that the H-1B that you are contemplating will be with the school, which I further assume is an institution of higher education and cap-exempt – if not, your organization would have to put in a H-1B registration application for you which in 2025 is running from March 7, 2025 – March 24, 2025 and you would hopefully be selected). In applying for H-1B, work authorization is only given when the H-1B petition is approved. If faced with a short timeline, the school may have to opt for premium processing on form I-907 application for premium processing to allow you to continue your work without break. If not filing H-1B through a cap-exempt school, an H-1B approval would only take effect in October for you at the earliest.

Filing for -I485 adjustment of status with a request for employment authorization does not have an established timeline for the employment authorization document (EAD) to be approved although USCIS currently is adjudicating most requests based upon I-485 filings in about 60 days. It remains to be seen what the timeline will look like in the future in a Trump administration. On the other hand, premium processing with its $2,805 fee allows the H-1B petition to be reached for adjudication within 15 business days.

4. Contact the USCIS to check whether the I-485 is approved

A reader asks:
I submitted I-765, I-131, and I-485 applications 7 months ago, but nothing has been approved so far. In early July, a letter RFE came, requiring a medical examination. I did as required, but it has been more than a month, and there is still no news. It is so painful to wait, what should I do?

Alan Lee, Esq. answers,
For the 1-485, 1-131 advance parole, and 1-765 employment authorization applications, you can check the processing times of the office(s) having jurisdiction over them. You can visit the USCIS website page for processing times (Processing Times) and 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.

5. Proof of non-immigrant intent is still required for I-140 applications under OPT

A reader asks:
I am currently in F-1 OPT status. Before signing the offer with my current company, the recruiter assured me that I could start the green card application immediately after joining. However, the green card application was blocked by the law firm after joining, on the grounds that China’s waiting list is too long and I cannot get a green card (or AOS) in the next 18 months. Another reason given by the law firm is that the F-1 visa is a non-immigrant visa. If I submit an I-140 application, there may be risks in entering and leaving the country. My own research shows that during the Biden administration, I-140 applications are no longer considered to have an immigrant intent, and will only be considered at the I-485 stage. May I ask if it is feasible to start the green card application during the F-1 period?

Alan Lee, Esq. answers,
Many labor certification applications are filed during the time that students are in F-I OPT status. Our office works with a number of companies that are willing to begin the labor certification process, especially where the applicant is eligible for a STEM OPT extension. Kindly note that your assumption that the Ii 40 application is no longer considered to have an immigrant intent must be qualified. Any student still has to prove nonimmigrant intent, although the December 2023 guidance by DHS clarified that F and M sludents must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still he able to demonstrate their intention to depart after a temporary period of stay. The question of nonimmigrant intent in student cases is usually more important when the student goes overseas to interview the visa at an American consulate. En your case, the company and its immigration attorney appeared to have made a decision that it would be too risky to sponsor you for the green card given the amount of time you have left and the long backlog of China horn. Perhaps another organization would be willing to take more risk and believe that you might be eligible for additional periods of stay through some other means.

6. After I-140 is approved, you can enter the U.S. with an O-1 visa

A reader asked:
I am in China and have a question. If I successfully apply for I-140 outside the United States, can I use an O-1 visa to enter the United States to work and wait for the waiting period in the United States? I am not sure whether O-1 can have an immigrant-intentioned visa?

Alan Lee, Esq. answers,
The scenario under which you have an approved I-140 petition and apply to enter the US under O-1 to work while your priority date becomes current may be possible. The O-1 visa is not a dual intent visa, but appears to exist in the gray area in which applicants must be able to show that they have a residence in the home country. We have seen cases in which individuals with approved petitions in the US have been able to apply for O-1 visas successfully at US consulates. So the answer is “maybe”, and of course, any visa application at the US consulate or embassy should be truthful in disclosing that you have applied for an immigrant visa petition.

Alan Lee, Esq. Q&As published on the World Journal Weekly on March 16, 2025：EB-1A approved, but may have problems coming to the US with a B visa

EB-1A approved, but may have problems coming to the US with a B visa

A reader asks:
I am in China and applied for EB-1A, which was approved in July 2023. I am struggling whether to go to US under B visa first and then apply for I-485 in the United States, or go through the interview at the Consulate General. Which method is faster?

Alan Lee, Esq. answers,
Traditionally consular processing was quicker than processing at USCIS since consular interviews could be arranged as soon as the priority date was current. However, there are now additional variables making it more challenging to predict which is faster. Because of the slowdown in consular processing and lack of officers incurred during the pandemic, many consular cases are not scheduled as soon as the priority dates are current. There is also a preference to schedule immediate relative family cases faster than employment-based cases. With USCIS, applicants previously could not file I-485 applications for permanent residence until the priority date became current. The situation was alleviated when the Department of State instituted Chart A (final action dates) and Chart B (dates for filing). Previously the priority date only related to a final action date. Applicants could now file I-485 applications before the final action date became current under Chart B (when USCIS states that Chart B can be used during the month) with the possibility that cases could be approved as soon as the Chart A priority date was reached. In the same manner as consular processing, however, cases are many times not adjudicated even then because of a lack of manpower or other reasons. Your situation is also unclear for other reasons – if you do not already have a B visa, there is a likelihood that it will not be approved since you have immigrant intent as shown by your approved I-140 petition. In the event that you manage to arrive under B visa, it is difficult to tell when the priority date under Chart B will become current to your date of July 2023. The current availability date of 1/1/23 has not moved since January 2024. You may also have the problem of figuring out how to maintain a valid status in the US if the priority date does not clear within the time that you are allowed to stay in the US under B status. Hope this helps.

Article: TRUMP IMMIGRATION MOVES AGAINST THOSE WITH HOPE AND STATUS

As published in the Immigration Daily on March 17, 2025

With a blizzard of immigration actions going far beyond a crackdown on criminal aliens, President Trump is exploding the hopes of those who voted for him thinking that he would only expel the criminal element of the immigrant population. If he obtains the $175 billion in budget funding for his immigration program included in the passed Senate resolution in February, he would have the monies required for mass deportation.

Not only are the undocumented at risk of removal, but also those who do not have permanent resident or US citizenship status as seen in the present actions of the administration. A small look at some recent actions of the administration shows that even those with forms of legal status have risk of being ensnared in Mr. Trump’s recent actions:

1. Social media screening is coming back in a big way in a Federal Register (March 5, 2025, Vol. 90, No. 42, pg. 11324) https://www.federalregister.gov/documents/2025/03/05/2025-03492/agency-information-collectio 60 day notice for comment promoting tighter vetting of applications by USCIS in fulfillment of Executive Order 14161, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” directing implementation of uniform vetting standards collection of information for rigorous vetting and screening of all grounds of inadmissibility or bases for the denial of immigration-related benefits. Social Media Identifier(s) on immigration forms and/or information collection systems are to be collected from certain populations of individuals on applications for immigration-related benefits for enhanced identity verification, vetting and national security screening and inspection.

This will delay the time for adjudications as USCIS officers and/or administrative staff will spend countless hours poring over applicants’ social media accounts. An idea of the immensity of such screening is USCIS’ estimate of the size of the populations to be screened in each application category – I-485 Application to Register Permanent Residence or Adjust Status, 1,060,585; I-131 Application for Travel Document, 1,073,059; N-400 Application for Naturalization 909,700; I-589 Application for Asylum and Withholding of Removal 203,379; I-751 Petition to Remove Conditions on Residence, 140,000; I-590 Registration for Classification As Refugee, 106,200; I-730 Refugee/Asylee Relative Petition 13,000; and I-829 Petition by Entrepreneur to Remove Conditions, 1010.

2. Enhanced vetting not only affects those requesting immigration benefits of USCIS in the US, but also nonimmigrant visa holders entering the country by US Customs and Border Protection inspectors. A recent article, “Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border,” by Dan Berger, Brian Halliday and Stephen Yale-Loehr Extreme Consistency: How Attorneys Can Prepare for Extreme Vetting at the Border pointed to two recent refusals of entry into the US – one a H-1B computer scientist in which CBP called the employer contact on the H-1B petition who could not remember the details or knew that the person was flying that day with the result that the scientist received expedited removal; and the second a PhD engineering student from China who received a F-1 visa, and upon CBP finding that the resume submitted at the consulate was shortened from the longer version she had on her laptop, had her withdraw the request for admission and return to China to apply for a new F-1 visa stamp. The authors upon speaking with three levels of CBP officers learned that CBP has new instructions to vigorously scrutinize applicants for admission to the US.

So it appears that travel in and out of the US for nonimmigrant visa holders will be tinged with danger and nonimmigrants in the US may wish to take less frequent trips and, if on working statuses, coordinate international trips with their employers to ensure that the employer’s signatory on the petition refreshes himself or herself with the nonimmigrant’s responsibilities.

3. The new NTA policy announced by USCIS on February 28, 2025 in Policy Memorandum PM-602-0187, “Subject: Issuance of Notices to Appear (NTAs) in Cases Involving “Inadmissible and Deportable Aliens” Policy Memo_Template is a step back to the past in which unfavorable decisions by the agency to applicants who had no legal status to fall back on were usually accompanied by a notice to appear in the immigration court for removal proceedings. Other than for denied cases involving criminal offenses, fraud or misrepresentation, the memo says that “USCIS will issue a new NTA where, upon issuance of an unfavorable decision on a benefit request, the alien is not lawfully present in the United States.” For employment-based petitions, NTA’s will be issued to beneficiaries where the decision on the petition is unfavorable, the beneficiaries are not lawfully present in the US or otherwise removable; and the beneficiary is a signer on an I-129 petition for nonimmigrant worker such as E-1/E-2 treaty traders and treaty investors, H-1B beneficiary owners, and O-1 beneficiary owners.

Prosecutorial discretion to withhold issuing NTA’s is limited and “should only be exercised in very limited and compelling instances and on a case-by-case basis after considering all USCIS and DHS guidance, DHS’s enforcement priorities, the individual facts presented, and any DHS interests implicated…”

So this will seemingly make maintaining nonimmigrant status a better alternative than simply forgoing extensions of such in favor of applying for and receiving EAD’s (employment authorization documents) which by themselves do not confer status.

We are returning to a time in which interviews in the field offices of USCIS may turn out to be harrowing experiences once again. Questions on whether interviewees may be detained in their visits to the field offices may once again be prominent. Many legacy INS and USCIS officers have not wanted to make on the spot unfavorable decisions in the past for sake of their own safety and fear that physical confrontations might result. On the other hand, the new policy may bring back another past method of handling such situations with the involved officer asking the applicant to wait and calling for officers attached to ICE to come before stating the decision and having them detain the applicant – an enhanced the risk to the applicant if the field office also contained an ICE section.

4. Expedited removal for parole program participants and those under regular removal proceedings. The Trump directive on expedited removal as announced by Caleb Vitello, Acting Dir., ICE, 1/23/25, https://www.dhs.gov/sites/default/files/2025-01/25_0123_er-and-parole-guidance.pdf, is fairly sneaky in directing ICE officers to review and consider in exercising enforcement discretion whether to initiate expedited removal against those who would be subject to it (not in the US for two years) by terminating all regular removal proceedings and/or any active parole status, and look for those whose paroles were automatically ended under Trump’s memorandum [terminating the Cuban Haitian Nicaraguan Venezuelan parole program]. Even for those who have applied for asylum or plan to do so in a timely manner, the directive says that the expedited removal process includes asylum screening, which it says is sufficient to protect the reliance interest of these parties.

5. In an unrelased fast track removal memo circulated at ICE on February 18, the Trump administration is directing ICE officers to identify immigrants who can be rapidly removed from the US without a court hearing through expedited removal. The memo that has been reported by various sources including AILA, targets low hanging fruit, some categories of whom hold some form of status and others (arriving aliens) who may under certain circumstances be eligible for adjustment of status to permanent residence https://www.washingtonpost.com/immigration/2025/02/28/ice-expedited-removal-mass-deportation/; https://english.gijotina.com/ice-memo-details-how-officials-will-try-to-deport-more-than-1-million-migrants-migrants/; Reuters Releases Updated Guidance From ICE on Expedited Removal:

  • Persons previously released by CBP and have not applied for asylum who include paroled arriving aliens, aliens issued a CBP “notice to report” (NTR), and aliens processed for parole with alternative to detention (ATD) or parole with conditions (PWC).
  • Arriving aliens who showed up at a port of entry that CBP determined to be inadmissible and previously released as long as they were inadmissible because of fraud or willful misrepresentation or lack of valid immigration documents. To this category, the memo says that there is no time limit on the ability to process under expedited removal.
  • The memo further states that persons who won withholding of removal (proving fear of persecution or past persecution by satisfying a standard of probable rather than merely well-founded fear of persecution) should be considered for expulsion to another country.
  • Also that immigration officers should rearrest immigrants that they have had to release in the past because they could not deport them since their homelands refused to take them back with the memo saying that the administration has made significant gains in having those countries take them back and also taking into account the potential for third country removals.

Expedited removal as expanded under Mr. Trump targets people who have been here for two years or less in any part of the US. Previous rollback under the Biden administration allowed its use for individuals caught within 100 miles of the border and within two weeks of entry. For those arriving legally through ports of entry lacking immigration documents or having misrepresented themselves/arriving aliens, expedited removal has generally only been used at a time proximate to entry in the author’s understanding and experience although it has been more used against people coming in under visa waiver programs who legally give up their rights to a hearing in writing by entering under a 90 day visa waiver program instead of through visa.

This is just the beginning of President Trump’s four years in office, and the immigrant communities – even those with some form of legal status at present – can expect many more shocks in the future. Everyone other than permanent residents and US citizens should be careful about their immigration statuses, not take unnecessary travel risks, and consult legal counsel before taking any steps that could jeopardize their statuses.

 

 

Alan Lee, Esq. Q&As published on the World Journal Weekly on January 26, 2025：1. Regarding I-485J on porting 2. An I-485 application should be filed with full documentation, including form DS-2019 3. 80% of the EB-1A petitions submitted are taking 12-14 months to process

1. Regarding I-485J on porting

A reader asked:
I got the I-140 approval for EB-3 from my previous employer, and I changed jobs to my current employer after more than 180 days. After my priority expired, my current employer applied for both the I-485 and I-140, and I-140 approved, but there was no progress on the I-485 after more than 180 days. Now, I suddenly received an RFE, which required I-485j, fingerprints, and medical examination which I already submitted before. What should I do in this situation? If I submit the 485j, will the overall I-485 processing be delayed? Does the I-485j also need approval?

Alan Lee, Esq. answers,
Under immigration rules, where there is an EB-3 I-140 approval from a previous employer which has not been revoked within 180 days, the beneficiary can move to another employer that would go through the labor certification and/or petition process again, picking up the old priority date with the new I-140 approval. I assume from what you said that that is what is being done in your case as you say that the second employer has filed and had approved a new I-140 petition. You also say that the I-140 and I-485 were filed together. If so, the I-485 J request sounds inappropriate, and your attorney or legal representative should so state to USCIS in the RFE response. An I-485J would seemingly only be necessary and must be approved where there is a second employer and an attempt to have the immigration case approved on the basis of switching to the same or similar occupation without taking any other steps such as obtaining a new labor certification or immigrant visa petition. The rule on porting where there is no new labor certification or I-140 petition is that an I-485J application for the new job after I-485 filing should be submitted for the same or similar occupation where the I-140 has been approved and at least 180 days have passed after the filing of the I-485 application.

2. An I-485 application should be filed with full documentation, including form DS-2019

A reader asked:
I must submit I-485 immediately, but found that I could not find my DS-2019 from ten years ago. Ten years ago, I entered the United States as a J-1, stayed for five months, and then returned to my home country for two years. The two-year residency requirement was implemented, so I should not need a J-1 waiver. More than two years later, I entered the United States as an F-1 and am currently on OPT. I am now filing I-485 with the principal applicant, but I found that I could not find the DS-2019 form. I contacted the school I exchanged with before, but no one was working. So I want to ask, will there be any critical issues if I do not attach the DS-2019 to the I-485 initial filling? I consulted a lawyer, and the reply was that I can file without the DS-2019. USCIS may or may not issue an RFE, because this document is ten years old. What I can do is: I can ask the school official first to see if I can find a copy. If you don’t have it, you can write a declaration to indicate that you can’t find your DS-2019. Then, submit your previous J-1 visa to show that you followed the two-year rule. Is that a problem?

Alan Lee, Esq. answers,
USCIS expects that an I-485 application will be filed with full documentation, including form DS-2019. Your plan is to ask the school official for a copy and, if such cannot be found, write an explanation as to why it is not available and what efforts you have made. You should also submit your old J-1 visa and proof that you returned to your home country for two years. I cannot tell you that this approach will work without receiving a request for information, but it sounds reasonable.

3. 80% of the EB-1A petitions submitted are taking 12-14 months to process

A reader asked:
My major is computer artificial intelligence, with more than 10,000 citations and various journal editors and reviewers, and many award-winning papers. I applied for outstanding talent, EB-1A submitted in March this year, and received a receipt, but then nothing happened. I have been waiting until now, and I saw on the Internet that some people were approved in a few days or one or two months. Please tell me, what is my situation?

Alan Lee, Esq. answers,
According to the published processing times of USCIS, 80% of the EB-1A petitions submitted to either processing center handling these petitions are taking a year and more – the Nebraska Service Center 12 ½ months and the Texas Service Center 14 months. The process can be speeded up by submitting the petition with or even submitting after the petition is filed Form I-907 Request for Premium Processing with additional filing fee of $2805 under which USCIS will reach the petition for adjudication within 15 business days. During that time, the agency will either approve, deny, or issue a Request for Evidence or Notice of Intent to Deny.

Article: H-1B MODERNIZATION RULE EFFECTIVE 1/17/25 – A LOOK AT COMMENTS AND RESPONSES

As published in Lexisnexis.com on January 16, 2025

As published in the Immigration Daily on January 22, 2025

USCIS’s second part of the H-1B proposed regulations, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers”, finalized on December 18, 2025, https://www.federalregister.gov/documents/2024/12/18/2024-29354/modernizing-h-1b-requirements-providing-flexibility-in-the-f-1-program-and-program-improvements goes into effect on January 17, 2025, three days before President-elect Donald Trump’s inauguration. The following are most of the changes with numbers in parentheses referring to the specific pages of the 400+ page rule:

  1. Deference to prior adjudications is in and the rule accords deference to any Form I-129 petition – not just extension requests as DHS agreed with the benefits of applying it to all nonimmigrants using form I-129 involving the same parties and the same underlying facts, not just to those seeking extension of stay – “Those seeking a change of status, amendment or extension of stay, or consular notification of approval warrant the same deference unless there is a material error involved with the prior approval, material change in circumstances or eligibility requirements, or new, material information adversely impacting the petitioner’s, applicant’s, or beneficiary’s eligibility.” (122). However, when there has been a material change in eligibility requirements, USCIS adjudicators do not need to give deference. (123-124). Also, the deference policy will not be grandfathered in when changes in eligibility of the specialty occupation occur including the revised definition of and criteria for “specialty occupation” promulgated in this rule. (128). Further for amendments, DHS declined to give deference saying that if the change in client location requires a new LCA, the new location would constitute a material change. (129).
  2. For “nonprofit research organizations”, the regulation recognizes that qualifying organizations may have more than one fundamental purpose and the final rule expands the definition of “nonprofit research organizations” to include entities with research as a fundamental activity, even if it is not their primary mission by replacing “primarily engaged” and “primary mission” with “a fundamental activity”. It would still have to be an important and substantial activity, although it need not be the organization’s principal or foremost activity. DHS declined to state that later stages of research, such as technology development and transfer, qualify for the exemption which is for basic and applied research (166). Documentation to prove nonprofit or tax-exempt status are tax returns, tax exemption certificates, references to the organization’s listing in the IRS most recent list of tax-exempt organizations, articles of incorporation, bylaws, or other similar documentation. It can of course be in the form of an IRS letter. (167). Use of a Professional Employer Organization (PEO) will not, standing alone, negate an employer’s cap-exempt qualification as USCIS will consider all relevant factors and review the totality of the evidence for each petition using the preponderance of the evidence standard to determine cap-exempt status (169).

USCIS also recognized in this context that beneficiaries may qualify for an exemption when not directly employed by a qualifying organization but still spending at least half of their time providing essential work supporting or advancing a fundamental purpose, mission, objective, or function of the qualifying organization (171-172).

  1. Clarification that “normally” does not mean “always” in deciding specialty occupation degree is in. DHS backed away from reliance on the Occupational Outlook Handbook (OOH) and declined to define the word to mean “more often than not” saying the such a change would essentially require the petitioner to demonstrate a specific percentage of positions that require a bachelors degree and could potentially make it more difficult for petitioners to demonstrate eligibility if the evidence that they submitted such as the OOH does not specify a percentage. It also said that it declined to be wholly reliant on O*Net data to demonstrate a degree requirement as there are gaps in the data, particularly as the data does not provide information on whether the degrees required must be in a specific specialty directly related to the occupation and may also be lacking for new and emerging fields of technology or occupations not covered in detail. It emphasized that no one factor alone, including O*Net, is determinative on whether a particular position qualifies as a specialty occupation (91).
  2. Range of qualifying degrees may have to be explained. However, also in is that although petitioners may accept a range of qualifying degree fields as qualifying, the required fields must be directly related to the job duties. It reiterated that “each of the fields must be directly related to the duties of the position.” “To only require the petitioner to justify that the degree of the beneficiary relates to the occupation conflates these two requirements. DHS does not agree that it is overly burdensome for the petitioner to establish how each field of study is in a specific specialty providing ‘a body of highly specialized knowledge’ that directly relates to the duties and responsibilities of the particular position….” (87-88).
  3. Cap-gap extension is extended until April 1 of the next year.
  4. A petitioner must establish that it has a bona fide position in the specialty occupation available as of the requested start date – this shocked many in the IT consulting industry and other staffing company advocates as seen in the rule’s comments and responses. To the concern that employers should assume the risk of finding sufficient productive work for an employee to perform and that USCIS has repeatedly confused speculative employment with a speculative project, and that the provisions are “individually and collectively incompatible with the entire practice of contracting specialized IT services”, USCIS did not agree that codifying the requirement of bona fide employment would eliminate IT staffing companies and countered that the position must be there at the time of filing the I-129 and without having the job there, there was no way to see if it is a specialized occupation (201-206). USCIS continued that it has long held that the H-1B classification is not intended as a vehicle for person to engage in a job search within the United States, or for employers to bring in temporary foreign workers to meet possible workforce needs arising from potential business expansions with the expectation of potential new customers or contracts (208). It further added that it was not proposing to require non-speculative projects for the entire validity period requested, but as noted in the proposed rule, the petitioner must demonstrate that at the time of filing, it has a nonspeculative position in a specialty occupation available to the beneficiary as of the start date of the validity period as requested on the petition (221).
  5. Where the beneficiary is being staffed to a third party, the work to be performed by the beneficiary for the third-party must be in a specialty occupation and it is the requirements of the third party and not the petitioner that are the most relevant. A commenter complained that the provision for staffing companies to prove job requirements would place the staffing company in an impossible position if the end customer is unwilling to provide the necessary information; that there may be difficulty in obtaining necessary documents where there are second and third level staffing companies in between the petitioner and the end customer; and that customers may want no involvement with attesting to the requirements of the positions stating that these noncustomers have concerns over joint employment liability – to which DHS said that it remains the petitioner’s burden to establish eligibility for the benefit sought and stated the type of evidence that the petitioner could produce, e.g. master services agreement or statement of work, or documents reasonably obtainable from the third-party, e.g. letter from the client. (282).
  6. Beneficiary-owners will be allowed to file, but USCIS will limit the validity of the initial H-1B petition and first extension to 18 months each. The final rule removes the reference to an employer-employee relationship requirement since it is now allowing beneficiary owners with more than 50% or with majority voting rights to qualify with 18 months on initial and extension petitions and further extensions in three year increments as long as they are performing specialty occupation duties the majority of the time although they may perform duties that are directly related to owning and directing the business. Commenters had concerns about the wage to be paid. For beneficiary owners, this would be a combination of occupations, and DHS said that the higher prevailing wage determination must be used, even when the beneficiary owner is performing nonspecialty occupation duties as authorized by USCIS in accordance with the final rule. (245). On commenters requesting flexibility on prevailing wage requirements reasoning that many startups may not see positive cash flow for a long period of time making it challenging for owners to both adhere to wage requirements and make investments to grow their business, and that LCA wage requirements force many entrepreneurs to take on entry level roles, as startups have limited cash reserves to pay market rate salaries for CEO and other C suite roles, DHS emphasized that it does not have the authority to alter statutory requirements or DOL regulations related to LCA’s and cannot provide any exceptions. (254).
  7. Specialty occupation is changed from requiring a degree “in the specific specialty” to a degree “in a directly related specific specialty” and the definition of “directly related” is “a logical connection between the required degree, or its equivalent, and the duties of the position.” On a trade association suggestion that USCIS issued guidance that any engineering degree would support any engineering position in meeting the definition of specialty occupation, the response was that USCIS regularly approves H-1B petitions for qualified beneficiaries who are to be employed as engineers. (83) DHS further emphasized on software developers that the petitioner would have the burden to establish how the fields of study within any engineering degree provide a body of highly specialized knowledge directly relating to the duties and responsibilities of the software developer position (83).
  8. The regulation revamps the language of the one in four criteria that a petitioner must meet to prove specialty occupation–
  • The degree or equivalent is normally the minimum requirement to enter the occupation with USCIS now defining normally as characterized by that which is considered usual, typical, common, or routine – and that normally does not mean always.
  • Clarifies that parallel positions among similar organizations is in the employer’s industry in the United States.
  • The occupation normally requires a bachelors degree to perform the job duties of the position instead of the old definition “for the position”. Also if placing the H-1B by contract at a third party, the “normally” required refers to the third-party.
  • The knowledge required for filling the specific duties of the proffered position are so specialized, complex, or unique that the knowledge required to perform is normally associated with the now revised degree or equivalent requirements.
  1. The regulation also requires that the LCA “supports and properly corresponds to” the H-1B petition and comments and responses strongly indicate that DHS will be exercising its expanded codified authority in this area. To a commenter inquiry whether USCIS would now assert that a position should be wage level II or wage level III when the petitioner has followed DOL guidance in determining a wage level I position, or if USCIS would now assert the SOC code is not correct on the LCA after the petitioner has reviewed the SOC codes and selected the one that they feel is best aligned with the position, USCIS gave an example that “if the petitioner and other supporting documentation indicates that the beneficiary’s position and associated job duties requires a wage level 2 or wage level 3 per DOL guidance, but the LCA is certified for a wage level 1 position, that may call into question whether the petition is supported by an LCA that properly corresponds to the petition or whether the offered position was accurately described in the petition. Similarly, USCIS may find a material discrepancy in cases where the SOC code on the LCA is inconsistent with the job duties as described in the H-1B petition” (227).
  2. The rule codifies USCIS authority to conduct site inspections and impose penalties for failure to comply with unannounced worksite visits, enter businesses and homes without a warrant to question, obtain information and use it against the applicant. Comments were raised concerning the authority or desirability of FDNS to enter employees’ homes and third-party companies. DHS said that it declined to restrict USCIS officers from going to homes as to do otherwise would create a loophole wherein any petitioner may exempt themselves from their evidentiary burden simply by locating workers at the residences (265-266). FDNS can also inspect third-party locations, DHS saying that there is no requirement that a petitioner place a beneficiary at a third party location – but if a petitioner chooses to petition for a beneficiary that is placed at a third party location, it remains the petitioner’s burden to demonstrate eligibility, meet all requirements of the H-1B petition, and employ the H-1B worker consistent with the terms of the approved petition. (268). It cited the same loophole strategy for not exempting beneficiaries at third-party locations.

The regulation was finalized in the last weeks of the Biden Administration, and it is difficult to predict whether it will stand or be rescinded by the incoming Trump team. It cannot be undone by Executive Order but could be under the Congressional Review Act which allows a joint resolution of Congress by majority vote to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. On the plus side for not canceling it are that the changes are mostly conservative and that the President-elect in the recent war of words in the Republican camp over the H-1B program supported Elon Musk and Vivek Ramaswamy, his nominees for heading up The Department of Government Efficiency (DOGE), both supporters of the H-1B program, saying in a phone interview that “I have many H-1B visas on my properties. I’ve been a believer in H-1B. I have used it many times. It’s a great program.” https://www.cnn.com/2024/12/28/politics/trump-musk-foreign-worker-visas-backlash/index.html On the negative side are that it is a Biden regulation and Mr. Trump is loath to give credit to him for anything, and it does not go nearly as far as his proposals in his previous term to change the H-1B program.

So we will see.

(For further information on the regulation when first proposed, see the author’s articles Proposed Changes to the Evidence Required for Establishment of H-1B “Specialty Occupation” Continued Reliance on OOH Expanded Authority of DHS To Compare LCA Position With H-1B Petition Etc Mean Tightened Adjudication Standards https://discuss.ilw.com/articles/articles/498435-article-proposed-changes-to-the-evidence-required-for-establishment-of-h1b-specialty-occupation-continued-reliance-on-ooh-expanded-authority-of-dhs-to-compare-lca-position-with-h1b-petition-etc-mean-tightened-adjudication-standards-by-alan-lee-esq and Clear Beneficial Changes to the H-1B Program in the Proposal https://discuss.ilw.com/articles/articles/498821-article-clear-beneficial-changes-to-the-h-1b-program-in-the-proposal-by-alan-lee-esq

Alan Lee, Esq. Q&As published on the World Journal Weekly on January 5, 2025： 1. USCIS can take any action such as issuing notices for information or denial prior to the priority date becoming current 2. You are allowed to take the priority date with you if new employer successfully applies for a new labor certification and/or I-140 petition 3. A common reason for advance parole denial is if the applicant left the US prior to the time that the advance parole application was approved 4. Many factors are taken into account, and a $20,000 decrease is a factor to be looked at 5. On EB-1A case, a magazine is asking you for money in order to interview you is not something that most recognized magazines would do. 6. USCIS is asking for separate checks for each of the benefits that you are requesting

1. USCIS can take any action such as issuing notices for information or denial prior to the priority date becoming current

A reader asks:
My I-485 suddenly changed to “Case Remains Pending”. What happened? I applied for EB-2 in October 2023, downgraded to EB-3, and applied for I-485 at the same time, and sent in the medical examination materials. In late November 2023, I took fingerprints, and finally waited until the end of March 2024. The I-140 downgrade was approved, but I received an RFE for the medical examination. In April, I resubmitted the medical examination materials, and the status remained at NBC for a long time. In July, the status was updated to Case Remains Pending. The PD is June 2020, and the table A is current, so why is it pending? A week after July, I received a letter from USCIS saying that the visa number is gone and the case has been transferred to NBC again. What should I do?

Alan Lee, Esq. answers,
I will assume that you are a native of China for purposes of the question. With a priority date of June 2020, and with the downgraded I-140 approved in March 2024, there was a window of time through September 2024 where final visa availability for China born was open to those who had filed labor certification applications or I-140 petitions prior to 9/1/20 to have their pending I-485 applications approved. However, the visa bulletin changed in October 2024 to reflect availability date for EB-3 China of 4/1/20. I do not know what happened with your case previously and why it was not acted upon between March-September 2024, but at this time, the visa number is no longer available, and you will have to wait until it once again becomes available to your priority date before USCIS can approve your downgraded application for adjustment of status. (I note that USCIS can take other action such as issuing notices for information or denial prior to the priority date becoming current if it decides that those actions are appropriate).

2. You are allowed to take the priority date with you if new employer successfully applies for a new labor certification and/or I-140 petition

A reader asks:
I am a PD in August 2022, and I applied for EB-2. I don’t know if the new fiscal year will make a big leap forward, whether the deadline will be met or downgraded. Now, I have an offer and can change jobs, but the new company does not have a batch, and I need to go through all the application procedures again. At present, it will take at least one and a half years to get I-140 again. The current company culture is a bit toxic. I can work until the end of the year, but it is not very stable and the career development opportunities are not very good. The new company should be good and very stable. May I ask, what should I do?

Alan Lee, Esq. answers,
I will assume that you are China born which in the month of December 2024 has EB-2 availability dates of 3/22/20 and 10/1/20 on Charts A and B of the visa bulletin. If the I-140 petition has already been approved with a priority date of August 2022 and the company has not taken steps to revoke the approval within 180 days, you are allowed to take the priority date with you if another employer successfully applies for a new labor certification and/or I-140 petition. The timeline for your final immigration would not fit within your statement that you can stay until the end of the year at your current company. Therefore, if the new company seems good and is very stable and is willing to take on your processes for permanent residence, you may certainly wish to switch to the new company.

3. A common reason for advance parole denial is if the applicant left the US prior to the time that the advance parole application was approved

A reader asks:
My I-765 was approved on July 25, and I-131 was approved on July 27, which should be a combo. However, on July 29, I-131 became reopened. What does this mean? Was it approved or not? What is the reason for reopening?

Alan Lee, Esq. answers,
It is in the discretion of USCIS whether to issue a combo card or not. If you have a combo card, the travel privilege will be indicated on the bottom of the EAD. In such case, it would be unusual for USCIS to reopen a request for advance parole once it is approved. USCIS can generally reopen an adjudication if there is new evidence indicating that the benefit should not have been given. A common reason for advance parole denial or revocation is if the applicant left the US prior to the time that the advance parole application was approved.

4. Many factors are taken into account, and a $20,000 decrease is a factor to be looked at

A reader asks:
I have submitted my I-485 and recently received an offer base that is 20,000 yuan less than the base of the old company. I would like to ask, if I accept the offer and submit I-485J through the new company, and the salary is 20,000 less than the old company, will it affect the approval of I-485?

Alan Lee Esq. answers,
You would be relying upon a transfer of your case under I-485 J, which allows the labor certification and I-140 petition to remain valid if the I-140 petition is approved and the I-485 application pending 180 days, and the new job is in the same or similar occupation. Many factors are taken into account including job duties, SOC codes, job title, of which a $20,000 decrease is a factor to be looked at. It should be noted that $20,000 less when an individual is making a salary of $150,000 is less concerning than when the individual is making $50,000 or so under the labor certification.

5. On EB-1A case, a magazine is asking you for money in order to interview you is not something that most recognized magazines would do.

A reader asks:
I am a computer professor at a 985 university in China. I am preparing to apply for EB-1A and am preparing the materials. An editor of a scientific magazine in China wants to interview me, but charges 20,000 to 30,000 RMB. This magazine is considered a national magazine. I don’t know if this is useful for my EB-1A application? Is this considered media coverage?

Alan Lee Esq. answers,
The regulations on media state that it must be published material about you in a professional or major trade publications or other major media relating to your work in the field for which classification is sought. USCIS generally looks to see a magazine circulation compared to other magazines in the field and who is the intended audience of the publication. The fact that the magazine is asking you for money in order to interview you is not something that most recognized magazines would do. You may want to further look into the bona fides of the scientific magazine to determine whether it is truly a respected publication in China. A big boost in whether it would really convince USCIS is if it has international renown.

6. USCIS is asking for separate checks for each of the benefits that you are requesting

A reader asks:
I submitted I-485, I-131 and I-765 two months ago. So far, the lawyer has replied that only the signature of FedEx has been received. It has been almost 2 months, and the check has not been cashed. Is this normal?

Alan Lee, Esq. answers,
It is slightly unusual that USCIS has not receipted your applications and it has been almost 2 months. It is not unheard of, however. Is there a chance that USCIS is getting ready to reject and return your applications? Possibly. Other than through the check not having been cashed, your attorney could have received indication from USCIS of an acceptance if he or she possibly sent in G-1145 E-Notification of Application/Petition Acceptance with your package. I also note that you mention “check” and you and your attorney should know that USCIS is asking for separate checks for each of the benefits that you are requesting.