Alan Lee – Page 4

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.

Article: TO BRING OR NOT TO BRING AN INTERPRETER TO THE IMMIGRATION INTERVIEW IN USCIS OFFICES THAT USUALLY PROVIDE ONE.

As published in Lexisnexis.com on December 9, 2024

As published in the Immigration Daily on December 17, 2024

This topic came up in the New York AILA/District Director Meeting of November 19, 2024. New York City and a number of other USCIS field offices in the past and even now have generally provided interpreters for adjustment of status and naturalization interviews. New York was unique in rejecting interpreters brought in by applicants in the past because of perceived fraud in interpreters not correctly translating the words so as to favor the applicant. However, there has been a big move towards having applicants once again bring in their interpreters, and in the meeting, the New York office reiterated that applicants are required to bring their own – that while the New York District may be able to provide interpreters, Language Services is a shared resource throughout the New York District; and that they are therefore not able to guarantee interpreters; and the District pointed out that the appointment notice says to bring your own interpreter.

Despite the above, anecdotal evidence informs us that the District continues to provide interpreters in most cases upon request. In an AILA New York lawyers’ group chat in October 2024, one commenter observed that each field office is its own little kingdom; that if the language is one that is common, interpreters are provided, that if a less in demand language is involved, then you may run into problems if you did not bring one. The commenter also said to make sure to let them know that an interpreter is present, or is requested, when you check in, and be prepared to be told, “We will provide one!” if you have brought your own, and “You need to provide one!” if you have not brought your own. Our law firm asked the question at the New York District Office last week at both the Manhattan and Brooklyn field offices and we were informed that telephonic translators are still offered; that most applicants request one when they come in for their interviews; that you can bring your own interpreter; and it is recommended that you bring your own translator if you have an uncommon language such as Urdu.

What if you cannot or do not want to go to the expense and trouble of bringing an interpreter who may not be used? The recommendation of the District was to request an interpreter through the Contact Center. What are the consequences of not bringing your own interpreter when the New York District office or any other office that usually provides interpreters will not or cannot provide the interpreter? There appear to be a number of options available to an officer. 1.) Going forward with the interview if it appears that the applicant can understand some English and the officer believes that the nature of the interview can allow the case to proceed without fluency on the part of the applicant. 2.) Going forward with the interview where the officer is fluent in the applicant’s language – such as provided for in the USCIS Policy Manual Chapter 5 – Interview Guidelines | USCIS. 3.) Explaining to the applicant that no interpreters are currently available so that the applicant would not be able to be seen on time and the officer would call the applicant’s name again when the telephonic interpreter (or one from a different floor of the district office) becomes available.4.)Turning away the applicant at the interview and saying that the applicant would again be scheduled, leaving the applicant in limbo as to when he or she will receive a rescheduled appointment notice unless the officer arranges a new date before the applicant leaves. 5.) Denying the application on the basis that the notice of interview clearly indicated that the applicant needed to bring an interpreter if one was necessary. However, that is an unlikely scenario given the uncertainty surrounding the availability of Service interpreters coupled with past practice of the USCIS office, and that lacking an interpreter does not go to the merits of the application such as a missing criminal disposition. We do note the USCIS September 11, 2023, affirmative asylum interview notice that as of September 13, 2023, applicants must bring interpreters when needed, and that “If you need an interpreter and do not bring one, or if your interpreter is not fluent in English and a language you speak, and you do not establish good cause, we may consider this a failure to appear for your interview and we may dismiss your asylum application or refer your asylum application to an immigration judge.” Affirmative Asylum Applicants Must Provide Interpreters Starting Sept. 13 | USCIS. We do not, however, believe the stricture applicable to other USCIS interviews as no such warning appears in the USCIS Policy Manual.

So it would appear that there is a risk in not bringing an interpreter to USCIS offices that usually provide one, and that the degree of inconvenience or punishment could largely be within the discretion of the District office. If the interview involves an uncommon language, the risk is greater that the field office will not be able to timely obtain the services of its own interpreter, and so it is highly recommended that, at least in those cases if not others, applicants should bring their own interpreters or make arrangements with the USCIS Contact Center prior to interview.

ALAN LEE, ESQ. SUPER LAWYER FOR 2024 IN NEW YORK METRO AREA

The 2024 annual list for the top attorneys in the New York Metro area is out and Alan Lee, Esq., was again selected as a Super Lawyer for New York City. He is one of only 4 lawyers of Chinese descent in the 81 attorneys chosen in the area of immigration law.

This is the 13^th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2023.

Alan Lee was earlier selected in August for the first time for the 2024 Best Lawyers in America™, which honors the top 6% of practicing attorneys in the country. He was only one of two lawyers of Chinese descent among the 82 selectees from New York City in the field of immigration.

He exclusively practices U.S. Immigration and Nationality Law with his son and partner, Arthur Lee, Esq., in the law firm, Alan Lee and Arthur Lee, Attorneys at Law.

Please click here for the “Super Lawyers List for Immigration 2024” and for the “Best Lawyers in America®”.

Alan Lee, Esq. Q&As published on the World Journal Weekly on November 3, 2024： 1. Working while the I-765 application is pending is unlawful 2. A one-year extension can be requested where the labor certification application has been pending at least 365 days 3. Waiting quietly and hoping to get the green card without doing anything else when the company closes may cause problems down the road 4. When USCIS issued the green card by mistake, it is recommended that your attorney to take care of the situation

1. Working while the I-765 application is pending is unlawful

A reader asks:
I applied for EB-1A, but my I-485 was rejected because I did not have a work permit for more than 180 days. However, I did not work when I did not have a work permit. How can I prove that I did not work illegally?

Alan Lee Esq. answers,
The question that I have is whether your I-485 was denied for not having a legal status for more than 180 days or for working unlawfully for more than 180 days. Having or not having a legal status is fairly cut and dried just by looking at your status papers, while the question of unauthorized employment may not be. For that, the facts count. What does the I-485 application say insofar as your employment for the past five years is concerned? Are you aware that you are only allowed to work with specific authorization even after filing the I-485 adjustment of status application? The filing of the I-485 itself does not give work authorization. In such case, many individuals file for an I-765 employment authorization application along with the I-485 and wait until it is approved before working. Working while the I-765 application is pending is unlawful unless an individual has some other basis to be employed. Was there an immigration interview and did you admit to the USCIS officer that you worked illegally? If you believe after reading the above that the decision was incorrect, you can file for a motion to have the decision reopened and reconsidered within 30 days of the decision and send in whatever proof that you may have of not having worked illegally including possibly affidavits from yourself, from your employer (if you have one) along with copies of all your pay statements showing that you did not work during the contested time.

2. A one-year extension can be requested where the labor certification application has been pending at least 365 days

A reader asks:
My second H-1B will expire in late August next year. Due to personal reasons, my lawyer just helped me file a PERM application in May this year. Considering the current timeline, is it too late for me? What other options do I have before my H-1B expires next year?

Alan Lee Esq. answers,
It is currently taking approximately 11-12 months for the Department of Labor to reach a PERM labor certification application after filing. If the ETA 9089 was filed in May, the chances are that it will be reached for adjudication by August. Even if it is still pending by the end of your H-1B status in August 2025, you and your sponsoring organization remain eligible to file a H-1B extension petition under the rule that a one-year extension can be requested where the labor certification application has been pending at least 365 days. As it is not too late for you under the above circumstances, there does not appear to be a need to discuss any other options.

3. Waiting quietly and hoping to get the green card without doing anything else when the company closes may cause problems down the road

A reader asks:
My lawyer is helping me apply for an expedited I-140, and he said that I can probably file an I-485 next month. However, my company is running low on money, and it will close in six months. My boss said that I have to pay for the I-485 myself. I calculated that my wife and I will have to pay for various miscellaneous expenses. What I am thinking is that if I file now and the company goes bankrupt, my boss will definitely not be in the mood to notify USCIS that the company is no longer viable (he doesn’t even know that there is such a thing). Assuming that I don’t encounter an RFE or an interview, can I quietly wait for the green card without leaving the United States? What is the probability of not encountering an RFE and an interview? If I look for a job now, it’s not that I can’t find one, but I have to start the green card process again from PERM. Should I pay this money?

Alan Lee Esq. answers,
It appears that your lawyer is trying to do everything that he or she can to have your permanent residence approved before your company closes. If the I-140 immigrant visa petition is approved, the I-485 adjustment of status application is filed, and 180 days have passed, your lawyer can attempt to port your case to another employer if you can find one which can offer you a position in the same or similar occupation. I do not know the probability of your having an RFE and interview if the company closes and you do nothing except hope that USCIS will just send you the green card. The matter of whether to pay the I-485 application fees by yourselves is a decision that you will have to make yourself. Please note that the strategy of waiting quietly and hoping to get the green card without doing anything else when the company closes may cause problems for you down the road, especially if you attempt to become a US citizen and must encounter a USCIS officer at interview at that time.

4. When USCIS issued the green card by mistake, it is recommended that your attorney to take care of the situation

A reader asks:
It has been a month since I received my green card. Then I received an interview notice last week, and the online status returned to “case was interviewed”. What should I do? The lawyer said that he received a response from USCIS, saying that there was an error in the interview appointment. I am worried that the Immigration Bureau will count my case as a no show and deny my case. Please ask, should this be okay?

Alan Lee Esq. answers,
Although rare, we have seen and in fact had a case in which USCIS approved our client’s permanent residence, and then sent out an interview notice. We quickly resolved that with USCIS and assume that your lawyer will do the same, especially if he is informing you that USCIS already responded saying that there was an interview appointment error. I suggest that you allow your attorney to take care of the situation as he or she appears to be on top of it from what you say in your question.

Alan Lee, Esq. Q&As published on the World Journal Weekly on October 27, 2024：1. To apply for EB-1A, 3 of the 10 criteria must be met

1. To apply for EB-1A, 3 of the 10 criteria must be met

A reader asks:
I have a friend in China who has talked to me about immigration many times. He is 42 years old and is an associate professor of computer science at a 211 university in China (the school should be ranked in the top 50 in the country). He is a cadre in the system, which should be a lifetime system. His annual after-tax income is about 150,000 RMB, plus other five social insurances and one housing fund, about 230,000 RMB. He wants to apply for EB-1A to come to the United States to work as a programmer or other computer-related work. As long as his annual income covers family expenses and he can save 30,000 US dollars, he will be satisfied. He is not a member of the Communist Party. May I ask how long it will take for him to apply for first priority?

Alan Lee Esq. answers,
In your fact situation, your friend is an associate professor of computer science who has good income, wants to apply for EB-1A to come to the US to work as a programmer or other computer related work, and he will be satisfied if his annual income covers family expenses and he can save $30,000 USD. He would not appear to fit within the criteria of EB1A which requires that an applicant have qualifications in 3 of 10 evidence categories to be considered, and if qualifying on 3, is then considered in a merits determination in which USCIS attempts to determine whether he or she has demonstrated national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that he or she is one of that small percentage who has risen to the very top of the field of endeavor. USCIS considers among other criteria whether the applicant has a major award such as the Nobel Prize, or if not three other criteria such as lesser nationally or internationally recognized prizes; membership in associations which require outstanding achievements of members, published material about him or her in professional or major trade publications or other major media; participation as a judge of the work of others in the field; proof of original scientific contributions of major significance in the field; and of the applicant’s authorship of scholarly articles in the field in professional or major trade publications or other major media. Your friend may decide to explore other parts of the US immigration scheme, including temporary worker under H-1B specialized occupation visa or labor certification green card – both of which require a US sponsoring employer.

Article: SHIFTING DATES OF AGE BEING FROZEN AND REFROZEN UNDER THE CSPA AND THE CONSEQUENCES, PART 2.

As published in Lexisnexis.com on October 16, 2024

As Published in the Immigration Daily on October 28, 2024

Part 1 of this two-part article discussed the situation in which the ability to keep a child’s “frozen” age [1]. under the Child Status Protection Act (CSPA) can be impacted by the parent’s failure to “seek to acquire status” during the one year period of visa availability following approval of the petition or even a shorter period of time within the one year if there is interruption of visa availability. This can have dire consequences in disallowing a previously eligible child to immigrate with the parent, forcing the parent to enter the US first as a permanent resident and then petitioning for the aged out child under the F-2B category for unmarried sons or daughters of permanent residents – a process taking approximately 8 years (for the month of November 2024, visa availability under the final action date chart of the visa bulletin is only open for those who filed F-2B petitions prior to 5/1/16 for children born in all countries except Mexico and the Philippines (which have longer wait times).

For the child to retain the original “frozen” date where the parent did not “seek to acquire status” within the time of visa availability including periods of less than a year, USCIS requires a showing of extraordinary circumstances as outlined in part 1 of this article. The Policy Manual Chapter 7 – Child Status Protection Act | USCIS explains that USCIS does not consider commonplace circumstances such as financial difficulty, minor medical conditions, and circumstances within the applicant’s control (such as when to seek counsel or begin preparing the application package) to be extraordinary.

If attempting to explain extraordinary circumstances through a lawyer’s inaction –that there was ineffective assistance of counsel, USCIS requires the applicant to submit an affidavit explaining in detail the agreement that was entered into with the lawyer regarding the actions to be taken and what information, if any, the lawyer provided to the applicant regarding such actions; demonstrate that the applicant made a good-faith effort to inform the lawyer of the allegations brought against him or her and if the lawyer has been given an opportunity to respond; and that the applicant indicate whether a complaint was filed with the appropriate disciplinary authorities concerning any violations of the lawyer’s legal or ethical responsibilities, or explain why the complaint was not filed.

Assuming that extraordinary circumstances are established, the question becomes what period of time is covered by the circumstances, and whether such would be enough to allow the child’s CSPA age to fall under 21. USCIS gives three examples in the Policy Manual:

There is a break in visa availability of three months and the visa becomes available again seven months later at which time the application to seek to acquire is made immediately. Here the Policy Manual says that the applicant must include an explanation and evidence demonstrating extraordinary circumstance for not applying for the adjustment of status during the first visa availability period, and where USCIS determines as a matter of discretion that extraordinary circumstances are established, it calculates the child’s CSPA age using the date the visa first became available during the three months.
There is a break in visa availability of three months, and becomes available again seven months later, but in this example, the applicant does not seek to acquire when visa availability comes about, and the period of availability stretches from that point for over a year before the applicant acts. The Policy Manual states that the applicant must demonstrate extraordinary circumstances for not seeking to acquire during the first time that the immigrant visa was available in the three months and the second time that the visa was available for an entire year, with USCIS then calculating the applicant’s CSPA age when the visa first became available.
The third example almost mirrors the second (an extra break in visa availability added either intentionally or not) except that the applicant demonstrates extraordinary circumstances for not seeking to acquire during the second period of time of over a year when the visa was available, but does not provide any evidence demonstrating extraordinary circumstances for failing to seek to acquire when the visa first became available during the three months. The Policy Manual states that USCIS would excuse the second period of time to acquire requirement in its discretion and assign the child a CSPA age using the age on the second date that the visa became available since there was no demonstration of extraordinary circumstances for not applying for adjustment of status within the three months.

What can parents do to protect their child for whom a refrozen date may prove catastrophic for the child’s immigration?

If they are not familiar with the monthly visa bulletin of the State Department, they should become adept at reading and following it and not merely rely upon the advice of others. Reading the visa bulletin now requires perusing four charts instead of the two charts of the not so distant past. If in the US and applying for adjustment of status, parents must also be aware of the monthly adjustment charts of USCIS which determine whether the agency is using the “Final Action Dates” or “Dates for Filing” chart – because if it is using the “Dates for Filing” chart, and the immigrant visa is available under the chart for that month, that is the date upon which the seek to acquire duty begins for persons planning to adjust status in the US. It should also be noted that employment-based cases are most prone to USCIS using either chart at different times during the government fiscal year. Family-based cases in recent years have mainly seen use of the “Dates for Filing” chart.

Is there a strategy that can possibly take advantage of the current difference in view of immigrant visa availability between USCIS and the Department of State? This may be possible in limited circumstances.

Prior to the USCIS change in February 2023, both agencies were in lockstep that a visa was available only when the priority date was reached on the “Final Action Dates” chart. Now the State Department still considers an immigrant visa to only be available under that chart (9 FAM 502.1-1 (D) (a) (3) https://fam.state.gov/fam/09FAM/09FAM050201.html despite continual calls by many for the Department to adopt the USCIS interpretation since that would benefit more children to have their priority dates frozen on an earlier date. The dichotomy between USCIS and the State Department views can possibly be explored if the difference in time of the “Dates for Filing” and “Final Action Dates” charts is narrow enough so that the child’s CSPA age remains under 21 when the “Final Action Dates” chart opens to the priority date. The family could consular process their immigrant visas instead of going through the adjustment of status process in the States. At the time of interview, the consulate or embassy would only look at the “Final Action Dates” chart to determine eligibility of the child on the issue of “sought to acquire”.

So, for example, the child is in the US with a CSPA age of 20 when age is frozen under the “Dates for Filing” chart, but the family does nothing for close to a year when the immigrant visa is available. The “Final Action Dates” chart opens to the priority date the month that the child turns 21. If the family becomes aware of or is already cognizant of CSPA rules, the family then has a choice of a rushed I-485 filing or taking advantage of the fact that for consular processing, the priority date just became current for the first time and that they have one whole year to take action to “seek to acquire” immigrant status. So this family may decide to switch from I-485 to consular processing, have their approved petition sent to the National Visa Center (NVC), and take one of the steps required to satisfy the “sought to acquire” requirement within one year of the priority date becoming current.

Although this is a option that may have risk, especially associated with the time that it may take an approved petition designated for adjustment of status to be sent to the NVC and with the possibility of the “Final Action Dates” chart backlogging and its attendant consequences, this may be a route that parent and child are willing to look at.

It should be noted that, barring an explanation of extraordinary circumstances, this may be the only route for the family in the above situation that fails to file the rushed I-485 and allows one year to expire under the “Dates for Filing” chart.

Summary:

With the USCIS policy alert and Policy Manual now emphasizing the need to prove extraordinary circumstances where the priority date became current and no action was taken during any length of time that the date was open, parents should be aware of how the opening and backlogging of visa categories, and use of the different visa and adjustment charts of the Department of State and USCIS may adversely affect the ability of the child to immigrate with them and perhaps even become proactive on their child’s behalf.

[1] Age is frozen for a child under the CSPA on the date that an immigrant visa petition is filed in the immediate relative category, or when an I-589 asylum application is filed by the parent, or on the date of the parent’s I-590 refugee interview with a USCIS officer, or when a backlogged immigrant visa petition for a parent is approved and the immigrant visa becomes subsequently available.

Article: SHIFTING DATES OF AGE BEING FROZEN AND REFROZEN UNDER THE CSPA AND THE CONSEQUENCES, PART 1

As published in Lexisnexis.com on October 16, 2024

As published in the Immigration Daily on October 25, 2024

There are two stages to a child turning 21 being entitled to immigrate with the parents under the Child Status Protection Act (CSPA) – being below the age of 21 at the time of final immigration taking into account the addition of time credited while a petition is pending in visa categories having backlogs, and seeking to acquire immigrant status within one year of immigrant visa availability.

In USCIS’s policy alert of September 25, 2024, “Age Calculation under the Child Status Protection Act”, PA-2024-23, 20240925-CSPAAgeCalculation.pdf (uscis.gov) the agency addressed the situation in which a child may have made it age-wise to have his or her age “frozen” before 21 under the CSPA, but possibly losing the “frozen” date where the visa category temporarily becomes unavailable before the child seeks to acquire, and then becomes available again during the one year of visa availability at which time the child takes proper steps to seek to acquire status before the year is out.

USCIS had previously ruled that where an applicant had not sought to acquire status within one full year of immigrant visa availability, the applicant would not be entitled to the first frozen date and only allowed the age on the date on which he or she sought to acquire unless there was a showing of extraordinary circumstances.

The policy alert cites the USCIS Policy Manual Volume 7, Chapter 7, Child Status Protection Act, Chapter 7 – Child Status Protection Act | USCIS which gives in greater detail the significance of seeking to acquire where age is at issue. An example that we can quite readily think of is a child whose parent is immigrating through the EB-3 category for employment-based professionals, and whose child is already 22 years of age, but is able to immigrate with the parent because his or her CSPA age is only 20 years 8 months at the time of visa availability because of the time that it took USCIS to adjudicate the petition. In this case, the parent should take further steps to ensure that the “seek to acquire” requirement is met.

How does one “seek to acquire”? The Policy Manual outlines the different ways:

Properly filing an Application to Register Permanent Residence or Adjust Status (Form I-485);
Submitting a completed Immigrant Visa Electronic Application (Form DS-260), Part I to the DOS;
Paying the immigrant visa fee to DOS;
Paying the Affidavit of Support Under Section 213A of the INA (Form I-864) review fee to DOS (provided the applicant is listed on the Affidavit of Support);or
Having a properly filed Application for Action on an Approved Application or Petition (Form I-824) filed on the applicant’s behalf.

In our example, because of personal or business reasons or slowness of the legal professional handling the case, the parent does not take the further step of seeking to acquire status within 4 months and the EB-3 category unfortunately becomes unavailable and does not become available again until six months later when the child’s CSPA age is 21 and 6 months (if refrozen).

Is the child still able to immigrate? The law allows an applicant to seek to acquire within one full year of visa availability and here the visa was only available for four months. So the child is still allowed time to seek to acquire. But the question is whether the child is still entitled to the first frozen date or whether that date is no longer valid and he or she can only have age frozen again with the date when the parent takes the necessary step to seek to acquire status.

In the policy alert and in the Policy Manual, the applicant must prove extraordinary circumstances to be able to retain the first frozen date. That means being able to prove the reason for which he or she did not apply during the first period of availability, even though it was less than one year.

In looking at the factors of extraordinary circumstances, the Policy Manual lists such factors as showing that:

The circumstances were not created by the applicant’s action or inaction;
The circumstances directly affected the applicant’s failure to seek to acquire within the 1-year period; and
The delay was reasonable under the circumstances.

In giving examples, the manual cites the following:

Legal disability, such as instances where the adjustment applicant suffered from a mental impairment, during the 1-year period;
Instances where a timely adjustment application was rejected by USCIS as improperly filed and was returned to the applicant for corrections where the deficiency was corrected and the application re-filed within a reasonable period thereafter;
Death or serious illness or incapacity of the applicant’s attorney or legal representative or a member of the applicant’s immediate family; and
Ineffective assistance of counsel, when certain requirements are met.

The Policy Manual did not limit the reasons to the above.

Thus it appears that a child’s age once frozen under the CSPA is not necessarily permanently frozen, and can become unfrozen and perhaps refrozen with a later date even if the child seeks to acquire within the one-year limit, which may certainly be undesirable to the family if the child’s CSPA age would then exceed 21.

(We will next discuss specific examples as brought forth in the Policy Manual and give suggestions on how to avoid being impacted by age being refrozen in Part 2).

Article: MUCH EMPLOYMENT BASED (EB) VISA MOVEMENT IN OCTOBER 2024 VISA BULLETIN; USCIS WILL ACCEPT DATES FOR FILING CHART FOR EB ADJUSTMENT OF STATUS CASES.

With the first visa bulletin for Fiscal Year (FY) 2025, there was not much activity in family-based cases, but much for employment-based ones. For both family-based charts (final action dates and dates for filing), the dates were the same as in the September 2024 visa bulletin for Rest of World (ROW) cases. The final action dates chart changes were confined to Mexico and India; and the dates for filing chart changes were specifically for Mexico and the Philippines.

For employment-based cases, the final action dates chart showed EB-1 (ROW) remaining current with China moving up one week to 11/8/22 and India remaining at 2/1/22; EB-2 ROW staying at 3/15/23 with China remaining at 3/22/20 and India 7/15/12; EB-3 ROW advancing almost 2 years to 11/15/22 with China backlogging five months to 4/1/20 and India advancing one week to 11/1/12; EB-3W ROW remaining at 12/1/20 with China remaining at 1/1/17 and India moving up one week to 11/1/12; EB-4 worldwide remaining at 1/1/21 with non-minister certain religious workers becoming unavailable due to lack of extending legislation; EB-5 unreserved remained current with China advancing eight months to 7/15/16 and India one year one month to 1/1/22, and all the reserved EB-5 categories remained current.

For the EB dates for filing chart, EB-1 ROW remained current with China staying at 1/1/23 and India advancing two months one week to 4/15/22; EB-2 ROW advanced four months one week to 8/1/23 with China advancing four months to 10/1/20 and India six months one week to 1/1/13; EB-3 ROW moved up one month to 3/1/23 with China backlogging eight months two weeks to 11/15/20 and India advancing eight months one week to 6/8/13; EB-3W ROW advanced five months two weeks to 5/22/21 with China moving up one year to 1/1/18 and India six months to 6/1/13; EB-4 including certain religious workers worldwide remained at 2/1/21; EB-5 ROW remained current with China moving backwards three months to 10/1/16, India staying at 4/1/22, and all the reserved EB-5 categories remained current.

For adjustment of status, USCIS indicated that it would use the dates for filing chart during the month for both family-based and employment-based cases. This is the first time that USCIS has used the B chart for EB cases since February 2024.

Looking forward, we would all hope that the Department of State continues to use all efforts to make use of all visa numbers as it has been doing during this fiscal year and as evidenced by its closing of numerous employment-based categories and barring further issuance of immigrant visas in them for the balance of the FY 2024 fiscal year.

Alan Lee & Arthur Lee, Esq. Q&As published on the World Journal Weekly on September 8, 2024：1. After being fired and H-1B grace period is up, you can try to return to school to maintain nonimmigrant status 2. Although the new job salary is $20,000 less than before, those I-485 applicants with higher salaries will not be affected 3. Although your consulate office is listed in China, you may be able to have H-1B interview in Europe

1. After being fired and H-1B grace period is up, you can try to return to school to maintain nonimmigrant status

A reader asks:
The first time I applied for PERM in 2020, I was audited and I submitted supplementary materials. In early 2022, I was notified that it was rejected. The reason for rejection was that the recruitment advertisement did not comply with regulations. In mid-2022, the company was acquired, and the new company ran a second PERM and encountered a hiring freeze. After waiting for 6 months, I submitted the second PERM application in October 2023. However, I was suddenly fired last month and the PERM is still being processed. It is now the 6th year of H1-B and is valid until November. I have interviewed with several companies lately, but after chatting with HR, I was rejected. Some companies require to have I-140 in the 6th year. Some said that the company does not apply for PERM this year. They also contacted the company where I was fired. After the first round of interviews, they arranged for a second round of interviews next week. The result was two days before the interview. HR called and said role restructure, and the interview was canceled. I want to apply for NIW, but I only have a Master’s degree in CS from the US + work experience as a coder. I have not published any papers or participated in academic conferences. There are only more than 30 days left in the 60 day grace period, and I feel like I can no longer find a job due to status issues. What should we do in this situation now?

Arthur Lee, Esq. answers,
Based upon your summary of your education and work experience along with your lack of published papers and academic conferences, I do not believe that you would be eligible for EB-2 NIW. Unfortunately, your pending PERM will no longer be valid since your company laid you off (unless they agree to continue to sponsor you with a promise of having the position ready for you at the agreed wage upon your green card approval). Therefore, you would likely need to start over and find another company to agree to sponsor you from the beginning of the PERM process.
As you only have 30 days left in your 60 day grace period, you will need to either find a way to maintain your nonimmigrant status or leave the United States. To maintain your nonimmigrant status, you may try to find a company to hire you on your 6th year of H-1B, although this may pose a challenge to both you and the company since you would be capped at working for until November, and then you will need to find ways to maintain valid working status or stop working and go back to school, or leave the US. If you leave the US for a year, your 6 year H-1B allowance would reset, but you would need to win the cap lottery again or find a cap exempt employer to be eligible to work in the US. If you are lucky enough to find employment overseas with a multinational company with a branch or affiliate in the US, and you work in a year in an executive, managerial, or specialized knowledge capacity, then the company can transfer you to the US to work in its related company under L-1 status for 5 or 7 years.
Other ways of maintaining your nonimmigrant status include going back to school and changing your status to F-1 for the duration of your education, or changing your status to a “B” visitor, during which you may interview for future jobs. Best of luck to you.

2. Although the new job salary is $20,000 less than before, those I-485 applicants with higher salaries will not be affected

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?

3. Although your consulate office is listed in China, you may be able to have H-1B interview in Europe

A reader asks:
Currently, I am in a small European country and plan to enter the United States to work in the near future. When the first H-1B visa address was chosen in China, there was a high probability that it would be checked. Considering that the current work is very tight and the check-in time is long, can the interview address be changed from China to the country where I currently am in Europe? Also can I get my passport back during the domestic visa interview?

Arthur Lee Esq. answers:
Even though you listed your consulate office as one in China when you filed your I-129 H-1B petition, you may be able to conduct your nonimmigrant visa interview in the European country that you are currently in. You may wish to check the consular post website to see whether it has guidance on its attitude toward third country nationals. If it accepts such cases or you are a resident in the European country, you can file a DS-160 with the European country after your H-1B petition is approved, and schedule an interview there. You may need to provide reasons why you are doing an H-1B interview in a third country rather than your home country–it is likely that a consular officer will be satisfied with your answer that you are currently living in that country and that it is much more convenient than going to China to conduct the interview. On your passport, a consular officer in this European country or China will take your passport to process the visa. The consulate may hold on to your passport for administrative processing if needed, but once a visa approval or denial is issued, you will have your passport returned.

Alan Lee & Arthur Lee, Esq. Q&As published on the World Journal Weekly on September 1, 2024：1. If I-485 has been waiting for more than 180 days, you can submit I-485J to change companies. 2. I-140 application will not affect the issuance of H-1B by the consulate. 3. There is nothing that says that an individual cannot hold two full-time H-1B positions at the same time

1. I-485 has been waiting for more than 180 days, you can submit I-485J to change companies.

A reader asks:
I am an H-1B programmer and have applied for EB-2, but the priority is not current yet. H-1B sixth year. I submitted I-485 using Form B in early October last year and had my fingerprints taken in December, but unfortunately, I was laid off. Recently, the original company was transferred, and I got an offer from another new company. The work intensity of the two cultures is almost the same. The new company offers a lot of money, which is a level higher. My understanding is that the original company can 100% protect the green card, but the new company offers a lot of money and the job content is also interesting. If the I-485 is less than 180 days, what is the probability of being RFE’d if I go to the new company to get the I-485? If I-485 is rejected and unfortunately, I am laid off again, can I still COS B-2 pending to buy time and find a job?

Arthur Lee, Esq. answers,
In this answer, I assume that you have an EB-2 I-140 already approved or that your EB-2 I-140 will ultimately be approved, and that your former employer did not rescind your I-140. As long as your I-485 has been pending for 180 days or more, you may put in an I-485J porting request. For the porting request to be successful, you must be in a job that is in a “same or similar” occupation as the position on your I-140. Since your priority date is not current, it is unlikely that you will receive any RFE since USCIS will not adjudicate your case until you have a date available. Anyhow, if you receive a request for further evidence, that is not a bad thing–this is an opportunity for you to file an I-485J porting request. Since you properly filed your I-485 in October and this question is now being presented in April, I believe that close to 180 days have elapsed from the filing of your I-485 application. In such a case, if you receive an RFE (which typically allows you 87 days to post a response), you can file an I-485J porting request in response to your RFE. As long as you file the I-485J response at least 180 days after you file your I-485 application, your porting application can be accepted. Therefore, if your RFE is issued at least 90 days after your I-485 submission, you are likely eligible for porting assuming your new position meets the eligibility requirements–just make sure that you don’t submit your RFE response with the I-485J until 180 days have elapsed from the filing receipt date of your I-485.
In order to protect your working status in case of an I-485 denial, you may consider extending your H-1B beyond a 6th year through an H-1B transfer/extension to your new employer. You may be eligible for the H-1B beyond the 6th year if your I-140 or PERM Labor Certification Application (ETA 9089) was filed more than 365 days ago or the I-140 is approved and the priority date is still not available. In this way, you will have extra time on your H-1B and can continue to file extensions until your green card application is approved or denied. If your adjustment of status is denied, you will still have the time remaining on your H-1B to continue working for your designated employer. During that time, and assuming that the denial reason does not impede the following, you may try again with the porting employer or try to find another employer willing to sponsor you for permanent residence.
If you do not take the H-1B extension route, you may still attempt to change status to B-2 to try to find a new job as interviewing for jobs is permitted under this status.

2. I-140 application will not affect the issuance of H-1B by the consulate.

A reader asks:
I haven’t been back to China for a long time. Currently, I have the I-140 approval letter and can only go back and apply for the H-1B visa before coming back. I-140 approval has not arrived yet. Is it difficult to return to China to apply for an H-1B visa? I wonder how long it will take to apply for H-1B now?

Alan Lee Esq. answers,
At this time, there appears to be more scrutiny of Chinese students, especially those in the STEM programs at the postgraduate level, by CBP at certain airports in the US. That being said, the H-1B visa is dual intent, meaning that you can have both immigrant and nonimmigrant intent at the same time. So the fact of the I-140 filing should not affect any decision concerning H-1B visa issuance at the consulate. Current consular wait times in China to get an appointment at the American consulate are 56 days in Shanghai if there is an interview and one day if no interview required. Also seven days in Beijing if an interview is required and one day if not. Please note that this does not take into account any further time after the interview if your case is placed under administrative processing.

3. There is nothing that says that an individual cannot hold two full-time H-1B positions at the same time

A reader asks:
I was recently laid off by my company, but I am still on the payroll, and the Termination Date is just after 180 days of my I-485 pending. Now, I have received an offer from a new company, and they want me to start work as soon as possible, preferably next month. However, I have two questions now: 1. Is it illegal if I start work before the Termination Date? Can an H-1B holder work two full-time jobs at the same time? If I start work before 180 days of my I-485 pending, can I pretend nothing happened and then submit my 485J after 180 days? 2. If neither is feasible, what should I do? Of course, I understand that it would be safer if I could postpone it to after the Termination Date, but the new company only gave a verbal offer. I am very worried that if I start work too late, they will not give me an offer.

Alan Lee Esq. answers,
I am sorry to hear that you have been recently laid off by your company, but it is favorable that your termination date is so long after the filing of your I-485. On the question of illegal employment if you join the company now, there is nothing that says that an individual cannot hold two full-time H-1B positions at the same time although it may be difficult to see how this can be done in terms of the number of hours in every day. Joining another company without a proper work authorization is not legal even if you have filed the I-485 application. If you have an EAD card through the filing of form I-765 with your I-485, you may be able to legally join the new employer. After the 180 days has passed, you and the new employer can file the I-485J supplement so long as the new position is in the same or similar occupation.