Alan Lee – Page 7

Article: THE NEW APPROACH TO THE H-1B REGISTRATION SYSTEM – WILL IT WORK?

As published in the Immigration Daily on November 14, 2023

This is the first of four articles on the notice of proposed rulemaking, “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers,” published in the Federal Register on 10/23/23. Written comments are due on or before 12/22/23.

USCIS is proposing a beneficiary centric registration system to replace its disastrous sponsoring organization registration system which has spawned unheard-of levels of abuse. In the proposal, it will not matter how many times an individual is registered by multiple organizations as that will only result in one registration, with USCIS seemingly sarcastic logic being that this proposed registration system will then allow the beneficiary if selected to pick from among sponsoring organizations to obtain the best terms of employment. In answer to concerns like ours that USCIS should go back to its old system which produced between 190,000-200,000 petitions in pre-registration days as opposed to780,844 registrations most recently (See “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’”, 5/1/23 Immigration Daily, and “Another Call For “Back To The Future” Change of Policy for H-1B Cap Selections by January 2024”, 9/14/23 Immigration Daily), it said that “[W]hen DHS considered the immense cost savings that registration provides to both USCIS and stakeholders and the significant resources the agency would incur to revert back to a paper-based filing system for all cap-subject cases, the benefits of having a registration system still outweigh the costs and any potential problems caused by frivolous filings.”

We imagine the weighing of costs and benefits depends upon whose perspective – the cost-cutting agency or those whose dreams of staying in the US legally are cheated. Without a feasible solution, the situation becomes intolerable. In the recent FY-2024 registration, over half of the 780,844 registrations were from beneficiaries with multiple submissions – 350,103 of people with one application and 408,891 of people with more than one. USCIS statistics from the previous year even showed one beneficiary with 83 registrations.

Fortunately, the solution of the beneficiary centric registration system seems a feasible solution as it takes away the chief incentive of multiple registrations – the increasing of odds in being selected. However, the change must be done now and certainly in time for the next H-1B registration period. Such would appear to be a simple fix to the system, but there appears to be doubt expressed in the proposed rule that the system change will be done on time. While saying that DHS may seek to finalize the provisions relating to the registration system before moving to finalize other proposed revisions of the rule, it adds that DHS and USCIS cannot predict with certainty agency resources for the next few years or even when the final rule would publish and therefore, there is also the possibility that DHS would need to delay the effective date of the registration system change. Further that the delayed date might only apply to the proposed changes of the beneficiary centric selection process, and in explaining why, says that it may delay the effective date if it determines that USCIS does not have sufficient time to ensure proper functionality of the selection process, including completing all requisite user testing – and DHS might need to delay the effective date for other reasons such as to avoid confusion that could result if the final rule took effect too close to the start of the registration period for the upcoming cap season or to avoid disparate treatment of registrations if the final rule took effect in the middle of the initial registration period or during a subsequent registration and selection period, particularly if USCIS needed to open a subsequent registration period later that year.

It is clear that no one will stand for another year of an inept and outrageous H-1B cap registration system like we have been seeing since its inception regardless of what USCIS says about its weighing of costs and benefits. Even if USCIS has to pour more personnel and capital than planned into fixing the system either by implementing the beneficiary centric system or going back to the old system of petition filings, it must ensure that a clear change is made in time for the next registration period in Spring 2024.

IMMIGRATION NEWS THAT YOU CAN USE – EAD’S INCREASED TO FIVE YEARS FOR MANY CATEGORIES – QUESTION; KEEPING STRAIGHT UKRAINIAN AND VENEZUELAN TPS TIMETABLES; USCIS ADJUDICATING DEPENDENT NONIMMIGRANT APPLICATIONS ALMOST SIMULTANEOUSLY WITH PRINCIPAL PETITIONS.

As published in the Immigration Daily on October 24, 2023

EAD’s Increased to Five Years for Many Categories – Question.

USCIS on 9/27/23 announced that it is increasing the length of time for EAD’s in certain categories to five years for initial and renewal EAD’s. These include applicants for asylum or withholding, adjustment under section 245, and suspension or cancellation of removal cases. Also those admitted as refugees, paroled as refugees, and granted asylum or withholding. It clarified that certain Afghan and Ukrainian parolees are employment authorized incident to parole.

Question: As is known, an EAD is only an ancillary application dependent upon the fate of the principal benefit being requested. How does an employer in good faith who does not use E-Verify know that the job applicant is no longer authorized to work when the principal immigration application has been denied since the job applicant will still be presenting an immigration document that is still facially valid for employment as it is one of the documents on the I-9 “A” list that establishes both identity and employment authorization? While recognizing that USCIS has better things to do with its time than constantly extending employment authorization, perhaps a lesser amount of time, three instead of five years, would be more appropriate.

Keeping Straight Ukrainian and Venezuelan TPS Timetables

With extensions and re-designations to the TPS programs of Ukrainians and Venezuelans, we thought to offer a short timetable of the benefits for each nationality to make them clearer as to deadlines to apply, date to be in the US for eligibility, and time limits of stay:

Ukrainians:

First registration was from 4/19/22-10/20/23.
Extension goes from 10/20/23-4/19/25.
Re-registration for extension is from 8/21/23-10/20/23.
Redesignation for those continuously resident in US since 8/16/23 and physically resident in US on 10/20/23 and thereafter.
Redesignation also goes from 10/20/23-4/19/25.
Registration period for redesignated goes from 8/21/23-4/19/25.
Expected eligible Ukrainians for redesignation are 166,700 in addition to the 26,000 eligible for extension under the initial program.

Venezuelans:

First registration and extensions were until 9/9/22 and 3/10/24.
New TPS extension announced by DHS on 9/20/23 until 9/10/25.
Reregistration for extension goes from 1/10/24-3/10/24.
Redesignation for those continuously residing in the US since 7/31/23 and continuously physically present in the US since 10/3/23.
Redesignation time goes from 10/8/23-4/2/25.
Registration date for initial registration goes from 10/3/23-4/2/25.
Expected eligible Venezuelans for redesignation or 472,000 in addition to the 243,000 eligible for extension under the initial program.

More complete information can be found for Ukrainians in the Federal Register / Vol. 88, No. 160 / Monday, August 21, 2023, and for Venezuelans in the Federal Register / Vol. 88, No. 190 / Tuesday, October 3, 2023.

USCIS Adjudicating Dependent Nonimmigrant Applications Almost Simultaneously with Principal Petitions.

In case you missed it, USCIS posted a notice on its I-129 page that for H-4 and L-2 dependents who are applying in the same package with their principal’s I-129 petition, it will adjudicate the dependent I-539 application(s) directly after approving the I-129 petition. This includes H-4 and L-2 work authorization requests. The news is welcome to all as USCIS in the past adjudicated the dependent applications separately and could take weeks or months to make a decision, leaving a family in suspense even though knowing that the dependent application(s) would in all likelihood be approved. Hardship could arise in the situation where the dependent spouse was waiting for approval of employment authorization to take up or continue employment. The new policy may encourage the use of premium processing for the entire case in such situations. We remind dependents that no biometrics fee is required for the I-539 and that a mistaken combination payment for I-539 and biometrics will result in rejection of the application and upon resubmission not considered to be part of the above policy unless the I-129 was simultaneously rejected and the entire package resubmitted at the same time.

ALAN LEE, ESQ. SUPER LAWYER FOR 2023 IN NEW YORK METRO AREA

The 2023 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 3 lawyers of Chinese descent in the 82 attorneys chosen in the area of immigration law.

This is the 12^th time that Alan Lee has been selected, having previously been honored in 2011, 2013-2022. 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 2023“

Alan Lee, Esq. Q&As published on the World Journal Weekly on October 15, 2023 : 1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country. 2. NIW processing time is usually about 12 months

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.

Article: OCTOBER VISA BULLETIN BRINGS MANY CHANGES TO EMPLOYMENT-BASED PREFERENCES

As published in the Immigration Daily on September 20, 2023

The October 2023 visa bulletin came out on September 15 bringing relief to many and frustration to others in the employment-based (EB) categories. Those in the family-based (FB) categories were mostly frustrated by the lack of movement. There were many positive advances along with a number of retreats in the Visa Office’s “final action dates” and “dates for filing” employment-based charts. The family-based (FB) categories had little or no movement at all in both charts. USCIS followed up with the positive news that it would follow the “dates for filing” chart for employment-based cases for the month, a big change as it last used that chart in March 2023. It continues to use the “dates for filing” chart for family-based cases.

The changes from the September visa bulletin were as follow:

Family-based (FB final action dates) Rest of the world (ROW) except for certain countries – F-2A for spouses and children under the age of 21 and unmarried of permanent residents advanced one year one month and one week to 2/8/19; Mexico F-2B for children over the age of 21 of LPR’s moved up five months to 1/1/02; Mexico F-3 for married children of US citizens advanced one month three weeks to 3/8/98; and India F-4 for siblings of US citizens moved forward three weeks to 10/8/05. FB dates for filing – Unchanged.

Employment-based (EB final action dates) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers jumped to “Current” from 8/1/23 for all countries except China (unchanged from 2/15/22) and India that advanced five years to 1/1/17. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one week to 7/8/22 for all countries except China (advanced two months three weeks to 10/1/19) and India that jumped up one year to 1/1/12. EB-3 ROW for skilled workers and professionals jumped one year seven months to 12/1/21 for all countries except China (advanced four months to 1/1/20) and India that jumped 3 years four months to 5/1/12. EB-3W ROW Other Workers moved up three months to 8/1/20 for all countries except China (advanced four months to 1/1/16) and India which jumped 3 years four months to 5/1/12. EB-4 ROW Certain Special Immigrants moved up three months to 1/1/19 while the component for Certain Religious Workers became unavailable due to unpassed legislation. EB-5 ROW for unreserved investors remained current for all countries except China (advanced three weeks to 10/1/15) and India that dropped one year seven months and three weeks to 12/15/18. EB-5 set-asides remained “Current” worldwide.

Employment-based (EB dates for filing) ROW for EB-1 extraordinary aliens, outstanding professors and researchers, and multinational executives and managers remained “Current” for all countries except China (advanced two months to 8/1/22 and India that moved backwards almost 3 years to 7/1/19. EB-2 ROW for exceptional aliens and those with advanced degrees moved up one month to 1/1/23 for all countries except China (advanced two months three weeks to 1/1/20) and India that remained unchanged at 5/15/12. EB-3 ROW for skilled workers and professionals advanced three months to 2/1/23 for all countries except China (advanced 10 months to 9/1/20) and India that remained unchanged at 8/1/12. EB-3W ROW Other Workers moved up six months to 12/15/20 for all countries except China (advanced one year six months to 6/1/17) and India which remained unchanged at 8/1/12. EB-4 ROW Certain Special Immigrants moved up five months to 3/1/19 along with the same movement for its component, Certain Religious Workers. EB-5 ROW for unreserved investors remained current for all countries except China (advanced one year to 1/1/17) and India that catapulted two years four months and three weeks to 4/1/22. EB-5 set-asides remained “Current” worldwide.

With a fresh supply of numbers for the start of Fiscal Year (FY) 2024, it remains to be seen how much forward movement the Visa Office can allow in the coming months.

Article: ANOTHER CALL FOR “BACK TO THE FUTURE” CHANGE OF POLICY FOR H-1B CAP SELECTIONS BY JANUARY 2024

As published in the Immigration Daily on September 14, 2023

USCIS must come to the inevitable conclusion that its current H-1B selection system is inoperable and fatally flawed by fraud. It must then go back to its old system of requesting the submission of full petitions by April 1.

This writer called for the action in a May1, 2023, article “H-1B Selection Process a Travesty-Time to Go ‘Back to the Future’” after the extent of the chicanery was revealed by USCIS as the rate of selection approval plummeted for those playing by the rules. 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 for the approximate 85,000 available numbers. Since then, petitioners have not been required to submit full petitions from which selections are made, the only current requirements being $10 per candidate and a small online form filled in by the sponsoring organization. Not surprisingly, cheating has been the name of the game as the FY-2023 number of registrations ballooned to an astounding 780,884.

USCIS then announced and ran a second selection process at the end of July, undoubtedly with an eye on the outrage of those shut out by the cheating, and to its credit selected 188,400 to fill the approximate 85,000 slots. But this is an unsustainable situation and the agency does not have the resources to investigate most of the fraud cases. With the closing of the second round of selections, USCIS sent an update on August 1, 2023, with strong warnings against people trying to game the system, but it revealed statistics that were simply staggering – 780,884 total registrations with eligible registrations being 758,994; eligible registrations for beneficiaries with no other registrations 350,103; and eligible registrations for beneficiaries with multiple eligible registrations 408,891. Besides attempting to scare off potential fraudsters, does anyone really believe that USCIS has the ability to investigate each selected multiple registration to see whether there are bona fide job openings by bona fide nonaffiliated organizations? Looking at the numbers provided by USCIS, only 21,890 registrations were found ineligible, and many of those were not deemed ineligible due to fraud, but for duplicates and other technical reasons.

USCIS is a cash-strapped organization that clearly does not have the resources to investigate each of the duplicate filings among the 188,400 selectees, nor for that matter, each of the non-selected among the 408,891 multiple registrations. A return to the old system would ensure that each submitted petition is bona fide because of the cost and effort required to put in full petitions. USCIS has until the beginning of the year if it decides to go back to the future since the time to submit petitions had traditionally been the first five business days of April and organizations will need time to put the paperwork together.

Q&A’s published on the World Journal Weekly on July 30, 2023: Article: 1. Where are all the I-601A cases going? 2. Watch out for distance learning. Q&As: 1. After receiving your permanent residence card, you do not need I-131 or I-765 2. It is a common situation that combo cards are not adjudicated together for all members of the family

Article:
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.

2. 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.

Q&As:
1. After receiving your permanent residence card, you do not need I-131 or I-765

A reader asks:

Eb-1A and I-485 show that new card is being produced, but I-131 and I-765 show that case was received and fingerprints taken respectively. In this case, is there anything I need to do? Will I-131 and I-765 petitions be canceled automatically?

Mr. Lee answers,
It appears as if you received an email or emails from USCIS that your green card is being produced which although unofficial can usually be relied upon. It also appears that you have checked the USCIS online status system and the ancillary applications of I-131 advance parole and I-765 employment authorization application, which shows that the applications have been received and fingerprints taken. The online status system is only as current as the person inputting the data, and it would appear that no action has been taken although the information may not be current. You do not have to do anything at this point. USCIS should at this juncture close or deny both of the ancillary applications as it is granting your permanent residence. We have seen that sometimes when the agency personnel are working on the green card application and ancillary applications at the same time, the ancillary applications are approved as they are being worked on by other officers. Please note that if you receive approvals of advance parole and employment authorization after receiving your permanent residence card, they cannot be used as you are now in another status.

2. It is a common situation that combo cards are not adjudicated together for all members of the family

A reader asks:

I applied for EB-1B, and the principal and dependent had fingerprinted at the end of January. The main applicant’s combo card was approved at the end of February, but we have not heard anything on the dependent’s case yet. Is it normal? Is there a way to solve the situation?

Mr. Lee answers,
It is unfortunately a common situation that combo cards are not adjudicated together for all members of the family who apply for them. The solution is either to wait until the published processing times for 80% of adjudications in the categories of EAD and advance parole have been reached to trace the case through the USCIS Contact Center (1-800-375-5283 or one of the other ways to contact the Contact Center), or prove that the dependent meets the expedite criteria of the agency. The current expedite guidelines are:

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.

I note that we had a recent case in which the dependent received the combo card prior to the principal applicant, who had a more pressing need for it, but did not meet the expedite criteria. The principal did finally receive the card, just in time to keep working for the company without a break.

Article: CAN THE SCOTUS CASE, US V. HANSEN, HELP TO PROTECT ALIENS WHO MAY BE DEEMED INADMISSIBLE FOR ALIEN SMUGGLING?

As published in the Immigration Daily on July 25, 2023

The Supreme Court on June 23, 2023 by 7 to 2 vote, Amy Coney Barrett writing for the majority in United States v. Hansen, No. 22-179 (US 2023) said that his acts of encouraging noncitizens to come to, enter or reside in the US illegally through a fraudulent adult adoption program were not protected by the First Amendment right of free speech. The Ninth Circuit had ruled favorably for Hansen saying that the statute criminalized even commonplace speech such as telling immigrants who are in the country illegally that “I encourage you to reside in the US” or advising them about available social services. But in a narrow ruling, Justice Barrett said that the provision “forbids only the intentional solicitation or facilitation of certain unlawful acts,” not including protected speech. In looking back on statutory history, she pointed out that then, as now, “encourage” had a specialized meaning that channeled accomplice liability, and when Congress later amended the provision, it added “induce”, which also carried solicitation and facilitation overtones. The question is what effect this ruling may have upon cases in which applicants for immigration such as parents of those who entered the US illegally in the past are now accused of alien smuggling –that they encouraged their children to illegally come to this country and are thus inadmissible to immigrate. The inadmissibility statute, 8 USC § 1182 (a)(6)(E)(i), INA § 212(a)(6)(E)(i), defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” It tracks closely with the Hansen punishment statute 8 USC § 1324(a)(1)(A)(iv), INA § 274(a)(1)(A)(iv) imposing criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” We have seen cases in the recent past in which parents have been denied immigrant visas and been required to seek waivers based upon consular officers’ suspicions that they encouraged or helped their child to illegally come to the States. This has even occurred in situations in which a widow explained that the assistance came from her dead husband only and where both parents vehemently denied ever assisting the son or daughter. Is there a Hansen argument here that USCIS and consular officers are precluded from using the alien smuggling provision for encouragement or inducement unless they have well-founded suspicions based on accomplice liability or solicitation and facilitation? In other words, that the people did more than verbally encourage individuals to enter the US illegally. The Hansen case was of interest to the Supreme Court because of its intersection with First Amendment rights, but that case involved a US citizen and not an alien. The Court earlier ruled in Kleindienst v. Mandel, 408 US 753 (1972) that noncitizens are not entitled to First Amendment protections. However, Justice Barrett made a clear ruling not based upon the First Amendment, but upon statutory interpretation, which should be just as applicable overseas to an alien as to a citizen of this country.

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.