Author: Alan Lee

1. After filing form I-485, you are not allowed to leave the US without advance parole 

A reader asks:
I reviewed a copy of my filing papers today and I found two mistakes: 1. There were two addresses one in the United States and the other in China, both of addresses were put down as the present address. My lawyer discovered these problems before and I made the correction.  Unfortunately, the submitted paper was still incorrect. I worry it will affect my I-485 filing, and I must stay in the US for an RFE. 2. The preparer’s signature on the last page of I-485J was signed by my lawyer in 2022, while the previous pages were all dated 2023. I am going back to China next month, and I don’t know whether I should wait in China or not. At present, my lawyer has not responded to me whether it will have any impact. Please tell me, how deadly are the problems?

Alan Lee Esq. answers:
On your first mistake concerning your address on the I-485 application, USCIS will generally send all communications to both you and your attorney, and so if you do not receive a letter from USCIS, your lawyer will most likely inform you of its contents. I will also assume that USCIS believes that you are inside the United States since it did not reject the I-485 application, which can only be filed by individuals physically present in the country. On the second mistake of the I-485J signed by the lawyer in 2022, that is probably not a major problem as the signature date could have been a mistake. Otherwise, USCIS could RFE for a new form. Kindly note that after filing form I-485, you are not allowed to leave the US without advance parole unless on H-1B or L-1 visa.  If not in the 2 classes, leaving without an approved advance parole is grounds for canceling the I-485 application.

2. If you are not planning to immediately go to the US, don’t file EB-1A too early

A reader asks:
I am an associate professor in China, my job is ok, and I can apply for EB-1A, and I think I have a chance to get a green card. Even if I obtain a green card, I am unlikely to go to the United States immediately looking for a job, because my child is only 7 years old, and I plan for him to go to college in the future.  For my child, I want to apply for a green card. I would like to ask, is it too early to apply now?

Alan Lee Esq. answers:
The basis of all employment-based green card applications including EB-1A is that the individual will immigrate to use his or her talent and skill in this country. If you are not planning to immediately go to the US to find a position, then it would appear to be too early for you to apply for EB-1A status. Your concern appears to be your child going to college, and since most children here enter college around the age of 18, that is over 10 years according to your plan. An EB-1A case takes approximately 2-3 years if everything goes well, and so if you made the application now and are successful, you would have to figure out how to maintain your green card for 7-8 years before your child is of an age to enter college in the US.

3. B visa holders should be wary about submitting adjustment of status applications within 90 days of entering the US.

A reader asks:
B chart is current, but I am in mainland China. Does B1 visa holder must submit I-485 after 90 days of entering the United States? My lawyer told me that if the B chart was about to be closed, I could submit I-485 directly even it was within the 90 days period, and it should not be any problem. Will I-485 be approved only when the A chart is current?

Alan Lee answers:
Generally speaking, individuals on B visas should be wary about submitting adjustment of status applications within 90 days of entering the US. Although the 90-day rule has been largely disavowed, many immigration officers may believe the taking steps to submit I-485 applications within a short period of time of entering the States may be indicative of a misrepresentation at the time of entry that the individual had nonimmigrant intent to return to the home country. That being said, you may have misunderstood your lawyer and he or she may have considered the pros and cons and thought that in your case with Chart B of the visa bulletin (dates for filing chart) about to be closed, the better strategy would be for you to file even if within 90 days of entry. If you file for the adjustment of status before Chart B closes, you will have to wait until your priority date exceeds the date on Chart A (final action date chart) of the visa bulletin before your case can be approved.

4. If it has been more than 30 days since you received the email, and you have not yet received your receipt notice, you can request online

A reader asks:
I received an email reminder from the USCIS on January 17 that the filing fee and expedited money for my case have been deducted, but I have not yet received the receipt notice in the mail. The mailing address is the address of my house where my roommate has been. However, I have set up mail forwarding to forward emails to my wife. Now, neither side has received it. Is this normal?

Alan Lee Esq. answers:
I assume that by this time you have already received further word from USCIS, and that your question was sent within 2 weeks of you receiving the email from USCIS in January. If you have mail forwarding, the US Post Office forwards the mail to the location for forwarding. Although it does not forward certain documents from USCIS, it will generally forward a receipt. Please note that it takes time for USCIS to generate a physical receipt to send out, and it also takes the post office time to forward the mail. If it has been more than 30 days since you received the email, and you have not yet received your receipt notice, you can place an eRequest online at https://egov.uscis.gov/e-request/intro.do , then click on “did not receive notice by mail”. Go through the form, fill in all your needed information, and specify that you did not receive your receipt notice.  Hopefully, your situation will be resolved before you need to submit an eRequest, but by submitting an eRequest, you will alert USCIS that you still did not receive your notice.

5. For personal case inquiries, it is best to contact the USCIS Contact Center

A reader asked:
I am in China. About three or four years ago, I submitted I-140 at an immigration agency through a friend’s recommendation. I asked many times during this period, but the other party said that there was no result and it was still pending. I asked the other party for a receipt number, but they refused to give it. I suspected that it was never submitted. In the past few days, I asked the artificial Emma on the official website of the Immigration Bureau to check the receipt number. I changed to 4 different artificial Emmas and provided them with my name, birthday, mailing address etc. They all said that it could not be found in the system.  Is it possible to prove that it was not submitted? My friend said that since it has been submitted for so long, Emma should be able to find the receipt number through my information. Is this true?

Alan Lee Esq. answers:
Emma is not designed to locate applications or petitions for which there is no receipt. For personal case inquiries, it is best to contact the USCIS Contact Center telephonically at 1-800-375-5283 and explain your problem to the USCIS representative. I do note that contact representatives run the gamut from being very patient to impatient and that an impatient one may not be disposed to search the system to see whether a petition for you has been filed. Hopefully upon getting through, the representative will be helpful.

1. An individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole

A reader asks:
Currently H-1B Extension has been Approved. The lawyer is preparing to submit I-485 this week, and plans to return home after having his fingerprints taken, which is expected to be at the end of November or early December. In the case of renewing a visa sticker in China, if you want to submit AP (double insurance) and leave the country before AP is approved, will the AP application be automatically canceled? It is said online that the AP’s pending departure will be canceled before approval, but will the AP’s pending departure be canceled if there is an H-1B?

Alan Lee answers:
The rules of advance parole are that an individual cannot leave the US prior to the advance parole being approved if intending to return on advance parole. We recently heard of a situation in which an individual did just that – file for advance parole, leave the US prior to its approval, and on returning to the US with a subsequently approved advance parole, had the I-485 adjustment of status application denied. Thus, having an advance parole is not double insurance if leaving before its approval. If approved before you leave, then it may very well be your double insurance. In the situation of an individual with valid H-1B visa and valid advance parole, the choice is up to that individual as to which document to use to reenter the US. We have heard tales that Customs and Border Protection (CBP) officers may express a preference as to which one they will be willing to accept, but generally, the choice will be yours where you have two valid documents for entry.

2. A prevailing wage determination is required to begin the case 

A reader asks,
I joined my current company in February 2022. Currently, companies require employees to work for one year before they can apply for a green card. Due to various reasons, I have delayed starting PWD until now. Now I have a few questions: 1. When is the salary of PWD determined based on the position? Is it the current job or the job when the company accepted me? I was promoted to Senior Researcher in August this year, so the two prevailing wages should be different. Are the YOE requirements on PERM calculated based on when you first joined the company? Previously, the company drew H-1B on a part-time basis. Although I have worked for two years, I do not have 2 years of experience. Will this affect PWD? Is it OK to get EVL before advertising? Is the PWD process not required?

Alan Lee Esq. answers,
Under PERM labor certification, a prevailing wage determination is required to begin the case to ensure that the employer will be paying prevailing wages for the offered position. The wage is based upon the position which is being offered in the labor certification application, not necessarily your current job. If you were promoted to senior researcher last year and the company is beginning your labor certification now, it should be sponsoring you for the job that it intends for you to take on permanently, and so should give the corresponding job description for the PWD determination. If experience is required, the company will also set the requirements there in terms of months or years. The requirements of course should ensure that you are eligible for your own labor certification in terms of education, experience, and special skills. In the labor certification application, the PWD is a required part of the process. In terms of obtaining an employment verification letter (EVL) before advertising, that is always a good idea, and an even better idea is to obtain one prior to sending in the PWD request.

3. It is not a necessity to contact USCIS to cancel the F-1 approval if you have an I-485 receipt

A reader asks,
My children are in college and their current status is H-4. Since I am about to turn 21, I submitted I-539 to USCIS in June to change status from H-4 to F-1. It was not approved in October, and I received an RFE saying I-20. If the start date has expired, the school will need to issue a new I-20, and you will also need to pay a student registration fee of 200 yuan. As a result, when the child was applying for a new I-20 with the school, we could submit the I-485, so after submitting the I-485 application, we no longer had to worry about the F-1 RFE. Currently, the I-485 receipt has been received, but the child’s F-1 has also been approved. We did not supplement the RFE and do not know why USCIS approved the F-1 in this case. After consulting with the school, the school said that the I-485 receipt can maintain legal status. So, do we need to contact USCIS to cancel F-1?

Alan Lee Esq. answers,
The school’s advice is correct that the I-485 receipt of your child will allow the child to remain in the US as you all await the decision on your I-485s. It is not a necessity to contact USCIS to cancel the F-1 approval, and in some ways, it may be best not to do anything to disturb that adjudication. Whether your child decides to continue going to school or not will not affect his adjustment of status. Kindly note that he is not allowed to work unless he receives employment permission from the school or in connection with an employment authorization application based upon the adjustment of status application.

4. EB-3 would typically take 3-5 years to complete

A reader asks:
I studied for a PhD in China and am now a postdoc in the United States, with a contract until the end of next year. In May this year, I submitted NIW and it was approved. The boss of my laboratory has no grants recently, and he is not sure whether the contract can be renewed at the end of next year. I may need to return to China to wait for the appointment. I am a STEM major and have a 2-year residency requirement. My husband has a bachelor’s degree in China, and the American employer may want to apply for EB-3 for him in order to retain him. We are hesitant now and don’t know whether to let his boss do it for him. If so, what issues need to be paid attention to and considered?

Alan Lee Esq. answers,
Questions for you primarily depend upon whether you are able to obtain a waiver of the two-year home residence requirement, whether you will be able to keep up your activities in the NIW field, and what effect serving out the two-year residence in China if unable to obtain a waiver may have on your case. I assume that your NIW petition was a self petition, and not one in which the US employer was listed as the petitioner. In such former circumstance, you should continue to work in the field in which you received the I-140 approval and be ready to show a level of activity in your field at interview if you must return to China for two years.

With reference to your husband’s proposed EB-3 employment opportunity, that type of case would typically take 3-5 years to complete assuming no complications given the present slow speed of visa processing in that category for China born. If he is under J-2 dependent status, he will also have the same two-year home residence requirement. If so, and he has to serve the two-year residence requirement in China, he would be allowed to immigrate at the end as long as the employer is still willing to support his case. His EB-3 case would involve a PERM labor certification, I-140 petition, and either adjustment of status (if not subject to the two-year requirement or having a waiver of it) or consular processing.

An EB-3 case for your husband gives you and your husband two opportunities to immigrate to the US, although it may be longer timewise than yours. However, the time difference may not be that much due to due to employment category availability dates. In the month of April 2024, visa bulletin final action dates under which adjustment of status or consular processing cases can be finally approved for China born are up to February 1, 2020 for EB-2 and September 1, 2020 for EB-3.

1. USCIS would not expedite work authorization unless one of the five conditions exists

A reader asks:
I submitted I-485 for EB-1B in June. The main applicant has a work visa, which is still valid for more than two years. I would like to ask if it is possible for the secondary card to pass the expedited comb due to financial loss? Because if you review it carefully, you will probably find that the main applicant has a job. It is speculated that it may be helpful to have two children, which will make the burden heavier.

Alan Lee, Esq. answers:
It does not sound like financial hardship where your spouse already has a job and a work visa even if you have two children and a heavier burden. So that is not in my opinion a good reason to expedite your green card case. In addition, a dependent green card cannot be approved before that of the principal applicant. In your situation, it would appear that you can apply for employment authorization based upon the I-485 adjustment of status filing. If your husband is holding H-1B status, you are eligible to apply also for employment authorization as the spouse of a H-1B holder who has an approved I-140 petition. In both situations, USCIS would not expedite work authorization unless one of the following conditions exists:

• 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;
• U.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.

2. EB-1A denied, maybe wait until you have developed new circumstances that may strengthen your case before submitting a new petition 

A reader asks:
I submitted EB-1A to TSC in July and responded to the request further evidence in August. I just learned that my EB-1A was denied. My attorney told me that the officer who adjudicated my case had an approval rate of 14% in 2023, so it was not surprising that my case was denied. However, my attorney suggested me to wait for 3 to 4 months before refiling to avoid the same officer to adjudicate my case again.

Now I have two choices: 1. Wait for 4 months before refiling to TSC; 2. Submit it now to NSC. I inquired my lawyer for advice and he told me he had no opinion and that I should make a decision on my own decisio. He just told me that my denial will not affect the next application, and whether a case is approved depends largely on the adjudicating officer.

Therefore, I feel like I should submit many applications as if you submit many application, even if I get denied many times, I just need to be lucky enough to be approved once. Please tell me, should I wait for another 4 months to refile again to TSC, or should I refile to NSC immediately?

Alan Lee, Esq. answers:
No one is certain of approval when submitting EB-1A petitions and how an officer may view the evidence presented of extraordinary ability short of a Nobel prize or Oscar (and we have heard of USCIS giving such a petition a difficult time even when the petitioner did have an Oscar in one of the nonmajor categories). I note that the I-140 petition requests information on prior filings which means that an officer has the opportunity to look over your past filing. Unless you truly believe that you had a very strong case that was wrongly rejected, our opinion is that you may wish to wait until you have developed new circumstances that may strengthen your case before submitting a new petition to USCIS.

3. Whether to move forward now with NIW petition

A reader asks:
My wife and I just came to the United States. We are currently studying for a Ph.D. and have some papers and citations. I have consulted with a lawyer and found out that I can apply for NIW under current conditions. I don’t know whether to apply as soon as possible or wait until I graduate soon? There are several tangled points: 1. According to the current queuing speed of NIW, will I not be able to get in line after completing my PhD? 2. The visa is for 5 years. If I apply for I-140, is there any risk in returning to my country? My wife is F-2, does it have no impact on her return to China?

Alan Lee, Esq. answers,
NIW is under the EB-2 category and the current date of availability (when an immigrant visa or adjustment of status can be granted for those who have approved NIW petitions with USCIS) is for petitions filed earlier than January 1, 2020. So there is a significant waiting time after submission of your case. That being said, having a PhD may strengthen the NIW petition, especially if the PhD is in the STEM sciences. So you should take these factors into account in deciding whether to move forward now with your NIW petition. The other factor that you ask about is the risk of traveling back to the home country, China, during the process as you have a visa for five years. Generally speaking, persons with visas do not have to apply for new ones at US consulates or embassies and do not experience problems coming back into the US. That being said, you may wish to keep abreast of developments involving Chinese students on PhD degree programs involving research, some of whom have been experiencing difficulties with Customs and Border Protection officers on reentering the country. That may apply more to you than to your wife, and I do not expect that that would be much of an issue if your wife is traveling alone.

4. The rescheduling of biometrics should not greatly affect the speed of your processing

A reader asks:
I estimate that I can pass form BROW and submit I-485 in October. However, due to an emergency at home, I plan to return to my country after submitting the I-485. The reserved H-1B has been checked, and it is very likely that I will not be able to take fingerprints in time, so I will most likely need to reschedule. My PD is September 12, 2022. ROW’s form A is not current yet. Will doing this cause it to turn green slowly?

Mr. Lee answers:
USCIS cannot approve an employment based I-485 until the priority date becomes current. Even then, USCIS has its own backlog processing time even when the date becomes current as it does not have enough hands to process all cases when they become current. So the rescheduling of biometrics should not greatly affect the speed of your processing even though the agency in our experience does not continue processing cases and their related applications until biometrics are completed. In the past, requesting rescheduling could sometimes result in cases being denied as USCIS officers did not coordinate the request for rescheduling with the application. That has hopefully been largely resolved by the agency’s recent update to rescheduling wherein applicants are invited to make their own online rescheduling requests to USCIS through their existing online account or by creating an online account. Good reasons for requesting a rescheduling as per the USCIS policy manual are:

• Illness, medical appointment, or hospitalization;
• Previously planned travel;
• Significant life events such as a wedding, funeral, or graduation ceremony;
• Inability to obtain transportation to the appointment location;
• Inability to obtain leave from employment or caregiver responsibilities; and
• Late delivered or undelivered biometric services appointment notice.

1. Applying EAD Encounters Two Situations

A reader asks:

My PD is at the end of July 2022, and now EB1 Form B can be submitted to I-485 to apply for EAD. Now I encounter two situations and want to ask for advice respectively.
1. My wife came to the United States on a J-2 visa from 2004 to 2006, and the old passport she used has been lost. She then returned to China and came to the United States to study again in 2020, using a new passport. Now that I-485 is submitted, a copy of the previous passport must also be submitted, and the old passport has a stamp for entering and exiting the United States, which can prove that the J-2 meets the two-year service requirement of the home country. However, now the old passport is lost. How should I deal with this situation?

2. My wife is currently a student with an F-1 visa and is expected to graduate by the end of next year. She is currently being interviewed for an intern in the summer next year. If I submit the I-485 together with me now, if I want to intern next summer, will I have to activate the I-485 combo card? She can no longer apply for an OPT EAD card. If I submit the I-485 separately now and submit it to her when the deadline is approaching, she might be able to apply for OPT EAD first and then get the combo, or should I submit the I-485 together now while she is intern? Also use I-485 EAD?

Mr. Lee answers,
To your first question, your wife can present a copy of the dependent  DS-2019 form that she had when she came to the US under the J-2 visa; her affidavit explaining what she was doing from 2006 to 2020; and backing that up with whatever evidence that she has of her residence in China or any other country including any subsequent passports that she may have applied for and received outside of the United States.

To your second question, I do not see any disadvantage in filing I-485 applications for both of you at this time. You can both apply for employment authorization cards. I note that we have been seeing USCIS move faster on approving EAD cards based on I-485 filings, most coming well before six months in uncomplicated cases. In addition, USCIS is now giving five years validity time to EAD’s s based upon adjustment.

2. A Renewal of the H-1B Visa in Canada Should Not Be a Problem

A reader asks:
I applied for I-140 and am waiting for approval. However, I still have an H-1B visa in hand, which can last for a while. Even if it expires, I plan to go to Canada to sign it back because I cannot leave the country while waiting for the I-131, which affects my vacation. I would like to ask if there are any disadvantages to submitting I-485 without I-131? For example, will it be slower or something? Can it be only fileI-485, not fileI-131?

Mr. Lee answers:
An I-131 application for advance parole while an I-485 adjustment of status application is pending is purely a benefit and not a detriment. Filing without the advance parole application will not slow the processing of the I-485. With the unexpired H-1B visa, you can travel in and out of the US during the time of processing of the adjustment application. Upon expiration, you should be able to have it renewed since the H-1B is a dual intent visa, allowing an individual to remain in the US on H-1B status while the permanent residence application is pending. Normally a renewal of the H-1B visa in Canada should not be a problem, although US consulates in many countries are wary of giving visas to third country nationals.

3. For an Expiring Combo Card, You Can Make New Applications

A reader asks:
In 2021, when my EB-1A was approved, I still had a pending NIW. In December 2021, I-485 was submitted based on approved EB-1A, and the pending NIW was also withdrawn. Unfortunately, I-485 was still transferred to NSC. In February 2022, there was no movement after the fingerprints were taken. During this period, I also received a NIW withdrawal notice. I received the combo card in June last year. This year I went to congressmen and the White House to urge me, but all I got were template responses from CIS. At this moment, the combo and physical examination are about to expire. what do I do?

Mr. Lee answers:
Unfortunately, USCIS is a money strapped agency and cannot adjudicate all of its cases on a timely basis. That can be seen from the long backlog processing dates that it releases to the public. For an expiring combo card for employment authorization and advance parole, you can make new applications. At this time, there is no additional USCIS filing fee for either application where the I-485 application remains pending. As for the medical examination, it is currently good for two years, and so it is up to you whether to take another one at this time or wait until USCIS is ready to adjudicate and requests a new medical.

4. Premium Processing Application lockbox Address

A reader asks:
I applied for EB-1A for special talents. Last week, UPS sent it to TSC Premium Processing. Today, the entire application was returned. The rejection letter from USCIS said: The fee for the I-129 petition I submitted was incorrect. What’s happening here? I applied for EB-1A and submitted I-140, not I-129 at all. No matter in the I-907, I-140 or cover letter I submitted, it was clearly stated that I was applying for EB-1A. The only thing I can think of is, should I fill in the I-907 and I-140 that I applied for E11? Maybe the people reading it don’t know that EB-1A is E11?

Another possible reason I think is that they thought I sent it to the wrong jurisdiction. I am not in the United States now. When I sent the application, I filled in the mailing address of my previous residence in New Jersey (TSC jurisdiction) and asked the landlord to collect it on my behalf. Physical address is the Chinese address filled in. Maybe they think I can’t send it to TSC using a c/o mailing address in TSC’s jurisdiction. But even so, should a Chinese address be able to send TSC?

Mr. Lee answers:
If you submitted the fees of $700 and $2500, they would be correct fees and USCIS should not have rejected the I-140 petition for alien worker and I-907 premium processing application. It appears that your choice is to send them the same package with an explanation, or to redo the forms and send in the paperwork again. On where to send an application if you are in China, the current address for a person stating an address in New Jersey is:

USCIS Chicago Elgin Lockbox

U.S. Postal Service (USPS):

USCIS
Attn: Premium I-140
P.O. Box 4008
Carol Stream, IL 60197-4008

FedEx, UPS, and DHL deliveries:

USCIS
Attn: Premium I-140 (Box 4008)
2500 Westfield Drive
Elgin, IL 60124-7836

5. Mailing Address and Residential Address

A reader asks:
I am going to apply for I-140. The mailing address (5b-5g) in Part 4 of the form is the Chinese mailing address filled in Chinese. Foreign address (3a-3f) is the Chinese residential address filled in English. Can these two be filled in differently?

Mr. Lee answers:
Mailing address and residential address are many times different. That is the reason for which USCIS gives the two spaces. Many individuals have different mailing addresses for security reasons or because they just prefer that their mail goes to a different address.