Author: Alan Lee

Q&A’s published on the World Journal Weekly on July 9, 2023 – 1. Get Your Green Card Faster with Cross-Chargeability 2. O-1 Visas Does not Have a Dual Intent Provision 3. PERM now Takes Approximately 9-10 Months for Analyst Reviews 4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

1. Get Your Green Card Faster with Cross-Chargeability

The situation in Silicon Valley this year is so bad, that I, without green card, am afraid of being layoff. I want to know if there is any way to get my green card quickly. My current background is: I graduated from a master program in the summer of 2019, and I got selected for H-1B before graduation. I started to apply for a green card on the first day I joined Amazon, but I didn’t get the I-140 approval until August 2021. I don’t know when I can get my green card.

A colleague pointed out two ways for me: 1. Marry a boyfriend who is not born in mainland China, and use cross-chargeability to jump in the queue to avoid waiting in priority date to be current. The advantage is that I don’t need to spend extra money and time. The disadvantage is that we are all a bit perfectionist. We want to experience the beautiful moments of life such as engagement and wedding, and we don’t want to rush just to get a marriage license. I don’t have a PhD degree and only have three papers, which with less than 100 citations. Is there any hope for me to apply for EB-1? 2. Per my current priority, when will I get my green card? 3. If I can do cross-chargeability, when can I get the green card?

Mr. Lee answers,
Cross-chargeability is used to assign the country chargeability of one spouse to the other where the dependent spouse is from a country with a more favorable immigrant visa availability in the petition category. For example, an applicant with EB-2 or EB-3 category approval from China is facing immigrant visa backlogs of 6/8/19 under EB-2 and 4/1/19 under EB-3 (June 2023 visa bulletin). If married to a spouse from a country like Japan or Taiwan, the backlog for EB-2 is much lesser with visa availability open to those who began EB-2 cases before 2/15/22 and EB-3 before 6/1/22. This presupposes a bona fide marriage of course, and not a marriage done as a favor, or as part of the conspiracy for the other party to gain immigration while the principal gains faster immigration. With cross-chargeability and your current priority date, the time to obtain permanent residence in a normal situation would depend upon the speed of the USCIS service center handling the I-485 applications and whether it has questions concerning your applications. The two service centers handling the bulk of the cases for employment-based adjustment have posted times to discourage persons from inquiring – the Nebraska Service Center has a posted time of 27 months, and the Texas Service Center 42.5 months. These timelines hardly seem realistic at this point and should be taken with a large grain of salt. To your other questions, there does not seem to be that much hope for you to apply for EB-1 given your described qualifications. I cannot estimate how long it would take for you to process your case without cross-chargeability as you did not give your priority date nor petition category in your fact situation – however, your priority date would have to become current for filing under your petition category before you could file for an adjustment of status application. At that point, you would look at the current processing time of USCIS for an estimate of how long your case would take to be processed to finality.

2. O-1 Visas Does not Have a Dual Intent Provision

My EB-1A was approved, and it may take more than a year to wait for the interview at the Guangzhou Consulate. Is there any way to go to the United States ahead of time? I heard it would be okay if it was an O-1 visa? In addition, if I land in advance, do I still have to go back to China for a Consulate interview after I receive the interview notice?

Mr. Lee answers,
If you qualify under a nonimmigrant working visa, you may be able to go to the US ahead of the time that you would have to wait for the interview in Guangzhou. As an EB-1A, your qualifications are most likely enough to qualify you for the O-1 visa. I do not know whether your EB-1A was petitioned for by an organization or whether you self-sponsored yourself, but kindly note that O-1 visa sponsorship requires a petitioning organization or agency. If you have a petitioning organization or agent, then you may be petitioned and able to come into the US under the O-1 visa. One other note is that an O-1 visa unlike H-1B specialized occupation and L-1 intracompany transferee visas does not have a dual intent provision under which an individual’s intent to immigrate is not relevant to the adjudication. Even if O’s are in a gray area of intent, most American consulates will issue O-1 visas even where the I-140 petition has already been approved assuming that there are no ineligibilities. If you are in the US pursuant to an O-1 visa, it would perhaps be more courteous and correct for you to return for the interview in Guangzhou instead of attempting to adjust status in the States.

3. PERM now Takes Approximately 9-10 Months for Analyst Reviews

I have filed a PERM, but it hasn’t yet been approved, and my I-140 is not yet approved. For family reasons, I need to relocate to an office in another state. My questions are: will this have any impact on my pending PERM? Some lawyers said that the current PERM would continue to go on, the priority date is locked as the I-140 was filed, and then PERM needs to be done again at the new address. My PERM has filed almost 9 months, why I have not heard back anything? Is the company cheating on me? what do I do?

Mr. Lee answers,
PERM labor certification applications test whether there is availability of US workers in a certain area. It is clear from your questions that the recruitment has already been conducted, the application filed, and the move in question a future move. When a job relocates to a state other than what was put down as the work location in the PERM application, the application usually needs to be done all over again. An exception may be where the job is the same, the employer is the same, and the new position is within commuting distance of the worksite address in the application. Assuming that the labor certification application is approved and the new worksite within commuting distance, your company’s attorney would make the argument for the validity of the labor certification to USCIS in the I-140 petition. To your query as to why there is no news although your PERM application is almost 9 months old, it appears that the Department of Labor is currently taking approximately 9-10 months to reach labor certification applications for analyst reviews.

4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

I have a doctor degree in Phys from the West Coast. I have been working in New York after graduating at the end of 2020. My citations are 900+, had some news reports, and 2 review papers. After graduation, I did not write any articles. Recently, I have been asking for magazines’ editors to get some review opportunities. In the past two years, I didn’t think about the green card, and I just wanted to apply for EB-1A recently. The lawyer said that my articles are relatively old and asked me to apply after I have had new articles published. However, because I changed my field, it is more difficult for me to publish articles again. Is there any chance for me to get my NIW approved? How about EB-1B?

Mr. Lee answers,
It is impressive that you have 900+ citations with news reports, and two review papers. It is understandable that the lawyer would be concerned and taking on an EB-1A application for you if your article is relatively old. One of the criteria for EB-1A is that you have sustained national or international acclaim. Insofar as NIW is concerned, having the PhD is certainly helpful, but you must also be able to convince USCIS that whatever endeavor you will be working on is substantial and in the national interest; that you are well-positioned to advance the endeavor; and that on balance, it would be beneficial to the United States to waive the job offer and thus the labor certification requirement. For EB-1B, you need to fulfill at least two criteria of which your articles, news reports, and review papers may be able to satisfy – however, EB-1B is not a self -sponsored petition, and you must not only be able to prove that you are an outstanding researcher, but also that the petitioning organization has a research component in which you will be performing research.  Although a labor certification is not required in EB-1B cases, a job offer and petitioning I-140 employer are necessities.

Q&A’s published on the World Journal Weekly on June 25, 2023 – 1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B 2. PERM application related skills depends on the employer’s requirement 3. PWD can be used for the same position and multiple people 4. EB-2 and EB-3 can apply at the same time 5. The old and new companies overlap for 1 month, you should answer truthfully

1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B

I am a PhD in Tiankeng major (which is the collective name of Chinese netizens for the four majors of biology, chemistry , environment , and materials ( biochemical and environmental materials ), and I switched to computer field in 2019. In 2019, I won the H-1B lottery and went through several companies. Unfortunately, every time when my PERM was about to be approved or ready to file PERM, I was laid off (twice), and never filed PERM. My current situation is that my company successfully filed the PERM for me in March of this year, but I am not sure whether I will be laid off before the I-140 is approval. Now I want to apply for NIW-EB-2, and my articles were cited 23 times at the journal/conference and had 160 reviews1. My questions are: How do I apply for NIW which can extend my H-1B? My H-1B will be in the fifth year in October 2024. When do I need to get my PERM’s I-140 approval to renew my H-1B? Will it be before October 2024 or October 2025? When I got the approved I-140, I would want to leave the company, but will the company withdraw the I-140 application if I leave? At present, the PERM of all companies, large and small, has basically stopped. what do I do?

Mr. Lee answers,
Whether USCIS will approve your NIW EB-2 application depends upon the officer’s judgment of your qualifications in light of the precedent decision, Matter of Dhanasar, with factors whether your endeavor has both substantial merit and national importance; whether you are well-positioned to advance the endeavor; and if on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. In order to renew your H-1B past the standard six year limitation, you would either have to have 365 days pass since filing the NIW or labor certification application, or if you are from a country with backlogged quota, have an approved I-140 petition. The time to begin a labor certification if everything goes well is approximately two years prior to the six-year expiration due to the time required to obtain the prevailing wage determination and for the labor certification to pass through the Department of Labor. If you obtain an I- 140 approval, the petitioning organization generally has 180 days to revoke the petition. If such is done within 180 days, the priority date is usually preserved, but the petition is not valid for extending H-1B status past the six-year limit.

2. PERM application related skills depends on the employer’s requirement

I graduated this year, and I am lucky to get an offer as a junior front engineer at the beginning of the year. The company is willing to immediately to get started with PERM EB-2 for me. A few days ago, the lawyer contacted me and gave me a verification of skill. The letter template only lists a few points and says it cannot be changed. However, I feel it is very unreliable. I worry more about it will attract a large number of local people to apply when the job is advertised. Have you tried using this small amount of simple skills, people have successfully passed the PERM labor certification in the end? Would it be better to write more skills?

Mr. Lee answers,
It appears from your fact situation that you have already gone over all of your skills with the attorney and he or she has given you a template of an experience letter based upon what he or she believes are the relevant skills to be required in the labor certification application. Please note that the education, experience, and other skills in an application are based upon what the employer requires and not necessarily what the applicant possesses. For example, an applicant may have 20 different kinds of skills, but the employer only requires three or four of them as relevant to the offered job. The Department of Labor requires the employer to list its minimal requirements for the position. If you believe that the attorney is failing to recognize relevant skills for the position taking the employer’s needs into account, you should contact him or her to explain their relevance and why they should be included as requirements in the PERM application.

3. PWD can be used for the same position and multiple people

I am applying for employment green card under EB-2. My lawyer told me that my job description and background were very similar to another colleague in the company, and suggested to use his prevailing wage determination (PWD) directly, saying that way, I could skip my job posting and could start 9089 form directly. Is it possible to do like this? That means the PWD follows the job instead of the person. If I meet the same job requirement, I can skip the job posting process?

Mr. Lee answers,
Labor certification applications are for individual applicants –that being said, a prevailing wage determination (PWD) can be used for multiple individuals having the same position with the same requirements. In such case, the attorney or other preparer of the application must ensure that the job is the same, the offered wage to the alien is at least at the prevailing wage level, and that the alien’s education, work experience, and any special requirements of the ETA-9141 prevailing wage form are met by all applicants using the prevailing wage determination. If any parts of recruitment pursuant to the prevailing wage determination have been completed, they can usually be used in connection with the ETA 9089 PERM application forms of other individuals. Recruitment is only good for 180 days from the date of PWD issuance where the recruitment was begun prior to the date of issuance, or 180 days from the date of first recruitment if recruitment was begun after the PWD was issued. So you should ensure that your case fits within the parameters of the ETA 9141 and that it is submitted on time in the event that you and the attorney choose to use the already issued PWD for your case.

4. EB-2 and EB-3 can apply at the same time

Currently, I have the I-140 employment-based immigration approval under EB-2, but the priority date is still many years away, and it could take three to five years. Recently EB-3 category’s priority date has moved forward. Is it possible to file an EB-3 I-140, to keep EB-3 and EB-2 at the same time, instead of downgrading? In this case, whichever comes first can be submitted first.  Are there any risks in doing so?

Mr. Lee answers,
It is entirely possible to file another I-140 under EB-3 even if you already have an approved I-140 under the EB-2 preference category. What you are asking is commonly done, and we have done so many times for our Chinese and Indian clients. When the priority date becomes current for one of the categories, you could file for adjustment of status under the petition that has visa availability. We do not see the risk in doing another petition unless the petitioning organization can no longer support the prevailing wage of the labor certification (we assume that this is a labor certification based case).

5. The old and new companies overlap for 1 month, you should answer truthfully

After being laid off, I continued to stay on payroll for three months. During that period, I found a job, and there was a one-month overlap between the last day of the previous employer’s payroll and the first day of the new company. In this case, what date should I put down on the form as the last day of my former employer when the new company applies a green card for me?

Mr. Lee answers,
There is no easy answer to your question. The issue you are likely attempting to address is how to handle the 60 day grace period that H-1B holders are allowed to find another organization and have that organization file a H-1B transfer petition. Did your old company consider the layoff to take effect at the beginning of the 90 days or sometime later? Did your old company send a letter of termination immediately to USCIS or did it do so later? If you are relying upon a statement of prior experience from the old company, what dates will it attest to as your time of employment? Generally, the best policy is honesty taking the above or any other factors into account.

IMMIGRATION NEWS YOU CAN USE –TO PHOTO OR NOT FOR N-400 FILINGS? WHERE ARE ALL THE I-601A CASES GOING? NEW VETTING CENTER FOR SPECIFIC AFFIRMATIVE ASYLUM CASES.

As published in the Immigration Daily on June 21, 2023

  1. To photo or not for applications like N-400 filings not requiring them?

Do you submit photographs to USCIS for applications that do not require them, such as N-400 naturalization applications (only those residing overseas are asked to submit two passport photos with the application)? The answer is not as easy as it seems, as there are pros and cons. Why submit photos which are not asked for? For a lawyer, it may make him/her look less competent in the eyes of a client who reads the form instructions if he/she asks for photographs? It may also slow down processing time in the attorney’s office, as the rest of the materials can be scanned and emailed over. And what of N-400 situations previously when the agency required photos, and then the officer requested another set at the time of interview? In that case, a client would be taking two sets of photos. We recently had a case in which the applicant brought photos to the naturalization interview (not on submission); they were not requested; and yet requested at the swearing-in ceremony at which time the applicant had left the photos at home! USCIS is generally re-using as many of the old biometrics as it can in the interest of reducing the time that its personnel have to spend on biometrics appointments. It is a good stratagem as fingerprints do not change, and has been universally applauded. (It should be remarked that persons not encountered previously by USCIS still have to attend biometrics appointments such as those entering on immigrant visas unless they were subsequently fingerprinted and photographed by USCIS). For waived biometrics appointments, the agency has also been using photographs that it has in the file. In a case last week, the interviewing officer requested photos saying that the ones in the system were too old. Luckily the client had brought photos and did not have to go outside the building, take photos, and then return. USCIS special instructions to form N-400 simply say that based on processing needs, an applicant may need to submit photographs after filing the N-400, and if so, USCIS will send a request along with instructions on how to submit the physical photographs. So do you submit unasked for photos for the filing, or do you carry photos to the interview, or do you not worry about photos at all since they are not requested? We have had other interviews in which the client offered photos which were rejected by the officer as not needed.

  1. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

  1. New vetting center for specific affirmative asylum cases.

In the past, asymmetrical affirmative asylum cases have been filed at service centers and then later at local asylum offices. Now USCIS has created a new vetting center in Atlanta, Georgia, to have one clear address at which these atypical cases can be filed. They are the following cases with USCIS instructions:

  • Loss of Derivative Status After Asylum Approval but Before Adjustment of Status (Nunc Pro Tunc):If you are currently a derivative asylee, but you are unable to adjust status to lawful permanent resident due to a loss of derivative relationship, then you may submit a new Form I-589 and request a grant of asylum nunc pro tunc. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Loss of Derivative Status After Initial Filing but Before Final Decision:If you withdrew from a principal’s Form I-589 as a dependent, or if you lost derivative status by marriage, divorce, or death of the principal applicant, then you may submit a Form I-589 as a principal applicant. In your letter, please provide information about your previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Simultaneous Filing as a Principal Applicant and a Derivative Applicant:If you are already listed as a derivative applicant on another pending Form I-589, you may file a Form I-589 as a principal applicant. Also, you and your spouse may file separate Forms I-589 at the same time as principal applicants and list each other as derivative applicants. In your letter, please provide information about any previous Form I-589 and explain that you are now filing independently as a principal applicant.
  • Previously Issued a Final Action by USCIS on a Form I-589:If you previously filed Form I-589 with USCIS, you may be eligible to file a new Form I-589 with USCIS if you have not been placed into immigration court proceedings after USCIS denied or dismissed your Form I-589, including if we dismissed it after you withdrew your Form I-589.
  • Previously in Immigration Court Proceedings: If you have reason to believe we have jurisdiction over your Form I-589 and you were previously in immigration court proceedings, then you may submit a Form I-589.
  • The address of the vetting center is:

Mailing by U.S. Postal Service (USPS):

USCIS Asylum Vetting Center
P.O. Box 57100
Atlanta, GA 30308-0506

Mailing by FedEx, UPS or DHL:

DHS-USCIS Asylum Vetting Center
401 W. Peachtree St. NW, Suite 1000
Atlanta, GA 30308

IMMIGRATION NEWS YOU CAN USE – JULY VISA BULLETIN AND USCIS CHART ACCEPTANCE QUICK SUMMARY; WATCH OUT FOR DISTANCE LEARNING; DOS ADMINISTRATIVE PROCESSING TIME BEING SHORTENED.

As published in the Immigration Daily on June 14, 2023

  1. July 2023 visa bulletin and USCIS chart acceptance quick summary.

The number of changes without counting diversity visa distribution is minimal in advances, and features a 3 ½ year retrogression to the India EB-3 final action date. A quick summary of family-based (FB) and employment based (EB) changes from June reveals the following: FB dates for filing – F-1 moved up nine months to 9/1/17 for all countries except Mexico and the Philippines; F-2A stays current; F-3 moves up three weeks to 3/1/10; and F-4 one month to 3/1/08. FB final action dates – only Mexico moved. EB filing dates – No movement at all. EB final action dates – EB-3 worldwide (except for China and India) moved back four months to 2/1/22 and India went backwards 3 years 6 ½ months to 1/1/09 in both EB-3 and EB-3W categories – ouch! A big warning was given in the notes that there is a strong likelihood that it will be necessary to retrogress the F-2A final action date next month, that the F-2B category final action dates will be continually monitored and that it may become necessary to retrogress the category to keep it within FY-2023 annual limitations. The July adjustment chart put out by USCIS is the same as in previous months – acceptance of dates for filing chart for FB and final action date chart for EB cases.

  1. Watch out for distance learning.

During the pandemic, USCIS was operating under Covid flexibilities under which distance-learning had been allowed in excess of the regulations under 8 CFR 214.2(f)(6)(i)(G) which states:

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

In an ICE SEVP Broadcast Message on 5/11/23: “Termination of SEVP COVID-19 Flexibilities”, ICE said that because of the termination of the Covid public emergency on 5/11/23, the SEVP Covid-19 guidance terminated on that day. Active F and M nonimmigrant students are able to complete the 2022-23 academic year under Covid-19 flexibilities through the 2023 summer semester. But active F and M nonimmigrant students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits for the 2023-24 academic year. Initial or reentering students must enroll in programs complying with the regulatory limits for distance learning. This must give pause now to those students wishing to enroll in schools offering a tenuous connection to physical classroom instruction as USCIS may now be looking harder at these schools’ arrangements for instruction following the ending of the pandemic emergency.

3. DOS administrative processing time being shortened.

The Department of State has good news for everyone. It sent out a message on 5/19/23 and reiterated it in the June 8, 2023 advice, “Facilitating Travel and Safeguarding National Security”, that the Department is processing visas more efficiently than ever and is continuously reducing the time required for administrative processing; that it has recently adopted new technology and enhanced coordination to reduce the number of these applications requiring administrative processing on security grounds, while upholding strict national security protections. It adds that since October 2022, most cases that would have previously required additional administrative processing were resolved immediately without additional, time-consuming handling.

Q&A’s published on the World Journal Weekly on June 11, 2023 – 1. Receiving the immigration letter does not mean that the I-485 will be approved 2. The status of the case does not reflect the processing status 3. Engineers worked in a China state owned enterprise usually do not affect immigration 4. Different immigration categories have different processing times

 

1. Receiving the immigration letter does not mean that the I-485 will be approved

I am now in OPT status. I submitted my immigration application and the priority date is September 2022. At the end of last year, I sent my I-485 to USCIS, and I went for fingerprinting in March this year. I recently received a letter from the Immigration Bureau asking me to submit some additional materials. Does this mean that my case is being handled? I don’t think my priority date is current yet, and my I-131 and I-765 application are still pending. I just want to know when can I get my combo card? That way I can go back home.

Mr. Lee answers,
Receiving a request for information from USCIS in an I-485 application means that someone at the agency is looking at your case, but that does not mean that your case will be approved since the priority date is not current. Cases cannot be approved before immigrant visas are available. It is difficult to say when your employment authorization and advance parole applications will be approved. Your fact situation does not say when you applied for the benefits, but I will assume for purposes of the question that you applied for them also in September 2022. At that time, USCIS had decoupled applications and was no longer issuing combo cards. (We have recently seen the resurrection of such in a few recent I-485 cases requesting both benefits, which is a good sign). Current USCIS published processing projections for the vast majority of its cases by service center are the following:

Advance Parole: Texas Service Center – 17.5 months; Nebraska Service Center – 11 months; California Service Center 18 months; National Benefits Center – 11.5 months; Vermont Service Center – 8 months.

Employment authorization: Texas 17 months; Nebraska 17 months; California 18.5 months; NBC 11.5 months; Vermont 15 months.

It may unfortunately take some time for USCIS to issue you these benefits. I note that we have had some recent I-485 filings in which advance parole/employment authorizations came quickly and even in the form of combo cards. While grateful for these cases, we believe that USCIS should seriously work on its backlogs.

2. The status of the case does not reflect the processing status

Yesterday I received an update from USCIS that my I-765 card was issued. But the strange thing is that I-131 on myUSCIS shows case closed, but the status on I-485 and I-130 are still under review. Is this normal? This morning I received 5 more emails from the USCIS, saying that they are going to process my case, but the online case status is still the same as yesterday. Is my I-485 going to be approved? Or is there a combo card first?

Mr. Lee answers,
USCIS does not generally close out an I-131 advance parole request when related to an I-485 adjustment of status to permanent residence filing unless the I-485 is being approved. We have had situations in which I-765 employment authorization requests have been approved when the I-485’s have been on the cusp of being approved. (We recently had such situation about a month ago). It may very well happen that you will receive unofficial and later the official notice of the I-485 approval. The online case status system does not always reflect current conditions in a case’s processing. Whatever is placed on the online case status system is only as current as the individual officer or clerk inputting information into the system.

3. Engineers worked in a China state owned enterprise usually do not affect immigration

My I-140 petition has been approved and I can now file the I-485 form. I looked at the form and found that I had to fill in my previous overseas work experience, even if it was 5 years ago. I used to work in a state-owned enterprise. Does this work experience affect the I-485 application?

Mr. Lee answers,
Form I-485, Page 5, Part 3 requests employment history for the last five years whether inside or outside the US. Page 6 of Part 3 requests that you provide your most recent employment outside of the US if not already listed. So an applicant is obligated to provide the information of most recent non-US employment even if not within the past five years. The information can be used to check back on representations made by applicants when they filled out visa applications to the US in the past. Depending upon the level of the position, work experience in a state-owned enterprise in China may raise questions of whether the applicant was or is a member of the Communist Party. While an engineer in such an enterprise may not raise eyebrows, a director in the enterprise could cause questions to be asked.

4. Different immigration categories have different processing times

I would like to know how the Immigration Bureau will give the number? Is it the date according to Priority Date? Or the date the I-485 was filed? For example, many of the I-485s in front of and behind the number MSC2390198XXX show card making or approval. Shouldn’t the I-485 be processed according to the smoothness of the number? Can you still jump in line?

Mr. Lee answers,
A USCIS case number is assigned at the time that an application or petition is receipted by the agency. Case numbers are chronological by service center, e.g. Vermont Service Center (VSC), California Service Center (WAC), National Benefit Center (MSC). The first two numbers indicate the year and the rest the chronological number of the application receipted during the year. The priority date of cases for family-based petitions is the date of receipt while priority date for employment based cases is either the labor certification receipt date (where a labor certification is involved) or receipt date where there is no labor certification, e.g. EB-1, NIW. Cases are generally processed chronologically, but they are processed chronologically according to the type of case. There are different processing times for the different categories of family-based and employment-based cases. Expediting a case out of line can be done where USCIS offers premium processing for a certain fee. Without such, it is very difficult to expedite an application or petition. Under USCIS guidelines, it may expedite a benefit request if it falls under one or more of the following criteria or circumstance:

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

 

 

Q&A’s published on the World Journal Weekly on June 4, 2023 – 1. To Apply EB-1A, You Must Show that Your Immigration Will be of Benefit to the US 2. Don’t Let I-485 Fall into a Black Hole Because of EB-1 3. EAD Processing Time is About 3.5 to 6 Months 4. Priority Date Could not be Transferred to Spouse 5. In Case of any Difficulty, Please Contact the Immigration Contact Center First

1. To Apply EB-1A, You Must Show that Your Immigration Will be of Benefit to the US

I am in my fourth year of PhD and I am preparing documents to apply for EB-1A. The lawyer asks for an employment letter which would state that after my graduation I would be hired. My school advisor already knew that I would not stay as a postgraduate student, and I wrote in my NIW I also indicated that I would find a job in an industrial field. So if there is no offer letter from my advisor, my lawyer said I had two other options: one is get an offer letter from others; the other is actively applying for jobs. My questions are: 1. Is it too late to find a job now? 2. The document says that the advisor’s offer letter is the best of these three. Therefore, is it for a doctoral degree graduate to apply for EB-1A with a postdoctoral offer? 3. If #2 is true, is there any bad influence if I don’t go for postdoctoral degree?

Mr. Lee answers,
You can generally start a green card EB-1A case whenever you choose and unless you have some unusual time pressures, it is not too late to find a job that can give you an employment letter. On the type of job and your lawyer’s document saying that the school’s job letter is the best among the three options, it may well be that your education and extraordinary knowledge are best used in a research capacity and that academia may offer the best opportunity. Although the EB-1A category criteria are different from those of a national interest (NIW) case, you must still be able to show that your immigration will be of benefit to the country. If you are able to secure a position in industry in which you will be able to utilize your knowledge and skills in an advanced manner, e.g. scientist as opposed to technician or analyst, such might also be an acceptable offer of employment.

2. Don’t Let I-485 Fall into a Black Hole Because of EB-1

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

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

3. EAD Processing Time is About 3.5 to 6 Months

I found a job in a lottery-free school, and the school promised to help me apply for H-1B, and I can apply for a green card after three years. My wife needs to apply for H-4. How long does it take for H-4 to apply for work authorization (EAD)?

Mr. Lee answers,
Under current law, a H-4 spouse is only eligible for an EAD under one of two situations – the H-1B principal has an approved I-140 petition or the H-1B is applying for an extension past the normally allowable six year time limit of H-1B status based on having filed either an employment visa petition (I-140) or labor certification application & 365 days have elapsed. I imagine that the first situation will likely occur before the latter. As your school will only apply for the green card after three years, the timing after that will depend upon how long a labor certification will take, or if the case is being done without labor certification, how long it will take for you to obtain the I-140 approval after three years. Following that, your spouse could then apply for the EAD and the further timing would depend upon the processing time of the relevant USCIS service center. Currently, such EADs are being processed anywhere from 3.5 – 6 months (current published processing times) dependent upon which service center is involved.

4. Priority Date Could not be Transferred to Spouse

My current situation is that my EB-1B has just been approved, but because EB-1 is not current, I have to wait for the priority to become current. The conservatively estimated time is about 1 to 2 years before I-485 can be submitted.  I did not apply for EB-2. My teammate has an EB-2 with a 2019 PD. I would like to know if I can this link my EB-1 to his EB-2?

Mr. Lee answers,
There are certain situations in which priority dates are transferable from one case to another, but they invariably involve the same person. For example, if you had a 2019 EB-2 approval, you could have used it in support of your EB-1 I-140 petition to request the earlier priority date. However, even if you were married and your spouse had a 2019 priority date, that could not be transferred to your petition. Each petition must go its own way.

5. In Case of any Difficulty, Please Contact the Immigration Contact Center First

I hold a green card and have met the requirements for naturalization. After I asked for a rescheduled appointment for my first naturalization interview due to physical discomfort, I suddenly received a letter from the US Immigration Service a month ago, informing me that I did not show up for the interview and that I had not contacted the US Immigration Service. After that, I made several phone calls and online contacts with the USCIS, and they all said that the application for the repeated appointment was approved. Last week, I suddenly received a notice from the field office, saying that I did not go to the interview for no reason, so the naturalization application has been administratively closed. I’ve written to the local field office to explain the situation, but am still concerned. Excuse me, can I ask the local MP for help in this situation?

Mr. Lee answers,
Your example is the reason why we always encourage our clients to make it to USCIS appointments if at all possible. USCIS will occasionally do what it did in your situation. Yours is not a rare situation. That being said, probably the best way to communicate with USCIS is to bring up the matter with its Contact Center which can be reached telephonically at 1-800-375-5283 from 8 AM-8PM EST. Writing to the local field office is no longer the preferred way of reaching out to the agency. If you wish, you can reach out to your local member of Congress for assistance, but you may also wish to try the Contact Center first.

Article: Last Days to Start a Labor Certification Case.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

Article: H-1B SELECTION PROCESS A TRAVESTY – TIME TO GO “BACK TO THE FUTURE”

As published in the Immigration Daily on May 1, 2023

USCIS announced the results of the FY-2024 H-1B initial registration period results on April 28, 2023, and they revealed a lot as to why there were so many disappointments this March. What a broken system! USCIS received 780,884 H-1B registrations of which over half were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. 110,791 selections were made, less than last year’s 127,600 because of anticipated higher H-1B1 use (which is set off against the H-1B numbers) and a higher anticipated petition filing rate by selected registrants. So the selection rate was 14.19% overall and if taking into account only the 758,994 eligible registrations (those that were not disqualified, deleted, or had payment problems), 14.6%.

It is apparent that there is much fraud in the selection process with individuals and companies putting up multiple applications. Under the law, H-1B registration for an individual is generally only one (no multiple applications by the same organization) and should only be made by an organization with a bona fide need for the individual. The exception is where another organization has its own bona fide need for the individual. The staggering number of beneficiaries with multiple eligible registrations, 408,891, belies this premise. It is clear that many individuals and organizations are colluding in the multiple applications and effectively squeezing out bona fide applicants.

What is the solution – we propose that it is to go “Back to the Future” and once again have organizations file full petitions instead of merely paying nominal amounts of money (currently $10 per registration) for the privilege of filing the specialized occupation petitions. Individuals and their organizations have no “skin in the game” to not try to game the system given the low threshold to play and lack of enforcement against violators. My partner, Arthur Lee’s article two years ago, “Recommendations to Improve H-1B Lottery System”, Immigration Daily 4/14/22, pointed out the astonishing rise of 53.5% in the number of H-1B registrants in FY 2022, 308,613, as opposed to the 201,011 H-1B petition registrations in FY 2020, the year before USCIS switched to the lottery registration system, and advocated a rise in the registration fee from $10 to $100 as a partial solution. USCIS has now proposed a fee increase to $215. However, this writer does not believe that even such a large fee increase will have any effect as the staggering numbers here indicate that many organizations and individuals will simply consider the amount a cost of doing business, and it is well known that USCIS fee increases do not discourage applications for immigration benefits. A prime example is USCIS’ premium processing fee which has risen from program inception of $1000 to today’s $2500 (for most cases) and only seen highly increased usage of the service. The real deterrent to this type of fraud is to have interested organizations put in full petitions with documented need for the individuals. One of the reasons given by USCIS for implementing this failed registration system was the voluminous number of papers that would have to be returned for each unselected petition – however, the amount of paperwork is now halved as the agency no longer requires duplicate copies of H-1B petitions.

From FY 2018- 2020 just prior to the implementation of the registration system in FY-2021, the number of received petitions in the three years hovered in the consistent range of 190,000 – 200,000. With the registration system in place in FY 2021, registrations zoomed up to 274,237, the next year 308,613, the next 483,927, and this March 780,884. At this rate without change, the number will exceed 1 million by next year because of fraud without regard to the economic conditions of this country. Many H-1B pundits had thought that the numbers would drop this year because of problems in the tech sector resulting in tens of thousands of layoffs, but were sadly mistaken.

So it would seem that the only sensible solution is to go “Back to the Future”. In its announcement of the overall numbers on April 28, USCIS acknowledged in a paragraph, “Measures to Combat Fraud in the Registration Process”, that the large number of multiple eligible registrations raised serious concerns of some gaining unfair advantage, but only reiterated the penalties which many have already ignored and will likely keep ignoring until there is some real “skin in the game”.

Q&A’s published on the World Journal Weekly on April 30, 2023 – 1. A question on prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined. 2. J-2 dependent who has EAD approved is generally allowed to work in the U.S. 3. H-1B holders who already have H-1B visas in the passports would continue to travel in and out using the visas.

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

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

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

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

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

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

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

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

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

Q&A’s published on the World Journal Weekly on April 23, 2023 – 1. RFE is Request for Further Evidence and NOID is Notice of Intent to Deny 2. An applicant for a B1/B2 visa must disclose past immigrant visa information

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

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

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

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

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

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

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