Author: Arthur Lee

1. You may be able to switch to the new job after 180 days of concurrently filing your I-140/I-485

A reader asks:
Currently, I have been in this company for many years and am somewhat underpaid. The salary is about 80% of the market rate. Fortunately, there is no risk of layoffs. I found a FAANG (5 high-tech companies – Facebook, Amazon, Apple, Netflix and Google) job some time ago, and my salary was about 30% higher than my current salary. Should I submit the I-140 to this company first? How long does it take from application to approval?

Arthur Lee Esq. answers:
In this answer, I assume that your current company has a certified PERM labor certification application for you, and that it is eligible to submit an I-140 on your behalf. Since you are considering this FAANG position, I further assume that you have discussed the position with your prospective employer, and that it is willing to possibly sponsor you for PERM labor certification. A final assumption is that you will not be filing any employer-flexible employment-based petition such as EB-2 NIW or EB-1A. In your situation, you have a few options. First, you can ask your current employer file an I-140 for you and wait for it to be approved prior to transferring to the FAANG company. Of course, the caveat here is that the FAANG company may not still be willing to hire you after the time that the I-140 is approved or your employer may attempt to revoke the approval if it feel victimized by you. Additionally, in order to have employer-flexibility and “port” your job after filing your I-140, more conditions must be met. The I-140 must be approved or pending, and you must have an I-485 application that has been pending for at least 180 days. So for this to work ideally, your priority date should be current so that you can concurrently file the I-140 and the I-485. After this, you would be able to “port” your job after 180 days of filing your I-485 application to a same or similar job at the FAANG company. To complement this strategy, if your current employer agrees, you can file premium processing on your I-140 for an additional $2,805 so that you can be potentially have an approved I-140 after 15 business days. Without premium processing, an I-140 petition typically takes somewhere from 6 months to a year to adjudicate. In sum, under this strategy, you may be able to switch to the FAANG job after 180 days of concurrently filing your I-140/I-485, and not have to have the FAANG company do another PERM labor certification application on your behalf. Of course, if your priority date is not current, you will need to wait for it to become current until filing the I-485, and then wait 180 days thereafter to change jobs to the FAANG company via H-1B transfer or another legal mechanism. If your employer files an I-140 that is ultimately approved, but you are not able to file an I-485, you may at least be able to retain your priority date for a second employment-based immigrant petition.

Your second option is to just accept the FAANG offer, and do a work visa transfer to them without your current employer filing an I-140 on your behalf. The upside to this is that you will be able to accept the FAANG offer while it is still fresh and not risk that ship sailing. The downside is that you will forgo the PERM labor certification that your current employer has done for you, and have to redo the labor certification process with the FAANG company which will add approximately 2 years to your process (ETA 9141 currently taking 6-7 months to adjudicate and ETA 9089 over a year at this time). Unless you have an approved I-140 that has not been revoked by your previous employer, you will not be able to retain your old priority date either. Therefore, if you are willing to wait longer for your permanent residence while maintaining nonimmigrant status in the US and make more money in exchange, then this could be a viable option for you. 

2. If you are uncertain about your ability to obtain a renewed H-1B visa at your home consulate, having Advance Parole as a contingency plan could help

A reader asks:
I am EB-3, Form B is current this month, but Form A is not yet available. The lawyer now plans to submit I-485 and combo card applications at the same time, but I just returned to China last month to renew my H-1B stamp, and my H-1B visa (I-797) has also just been renewed for three years. I originally planned to go to Costarica for a vacation at the end of this year and return to China to visit my family in May next year, but now once the AP card application is submitted, I cannot leave the country. The lawyer said that it now takes about 12 to 15 months to get the AP card, which means that all overseas travel plans for next year (and maybe the year after) will be cancelled. Now, I want to tell the lawyer to only submit the I-485 and not submit the EAD and AP card applications, because considering that my H-1B stamp has one year to expire, the AP card will only be valid for 1 year even if I get it, and H- 1B visa stamp has about the same length of effect. In this case, I can return to my country with a valid visa next spring and wait until the visa stamp expires before applying for an AP card. Is it okay for me to think about it this way? My job is relatively stable. Although the salary is not high, I am not particularly worried about being laid off suddenly. If I don’t apply for an AP card now, will there be any other risks?

Arthur Lee Esq. answers,
While this is up to you, there is still some value in applying for the EAD & AP in your situation. The fact that you have fresh H-1B status with close to 3 years of validity is great in that it reduces the urgency in your situation to apply for an EAD and AP. You can freely travel back and forth on your H-1B visa as long as you are still employed at your H-1B sponsoring company or have a valid H-1B transfer petition approved. After your H-1B visa expires, you can renew at your home consulate when you return next Spring by applying for a DS-160 and having all necessary evidence available including your valid LCA, job letter from the company, and H-1B approval. Having an advance parole approved does not negate your H-1B visa. You can just use your H-1B visa to come in and out of the United States. Where the advance parole may benefit you is if your I-485 case takes more time to approve than the validity of your H-1B status. Of course, the advance parole is only valid for periods of to one year if not renewed. So you could consider applying for EAD & Advance Parole closer to the expiration of your H-1B if you so desire. If you wish to coordinate the advance parole with your H-1B status expiry, you could apply for the benefits about 12 months before the date of your H-1B expiration. Your I-485 case could possibly take longer to adjudicate than the validity of your H-1B status as employment-based cases in some jurisdictions are taking long to adjudicate—you can see the USCIS processing time charts for an approximate waiting time on your type of case—and because your priority date is not current with respect to the Final Action Dates (“Chart A”) yet. If your green card case is not approved yet, and you have an advance parole, you would generally be able to depart and enter the United States without needing to extend your H-1B status. Also, if you are for any reason uncertain about your ability to obtain a renewed H-1B visa at your home consulate, having Advance Parole as a contingency plan could help. While applying for I-485 without EAD or Advance Parole may work for you especially as you have nearly 3 years of H-1B validity, you may want to consider the above benefits and decide whether they are worth the extra applications to you. But aside from the costs, there are no perceptible downsides to applying for EAD and AP.

If you self-petition an I-140 EB-1A petition, you may designate your planned state of residence in the United States as your principal workplace

A reader asks:
Apply for EB-1A in mainland China, DIY the materials myself, and submit I-140 and I-907 at the same time. Two questions to ask: (1) There are 2 shipping addresses listed on the USCIS website. Based on the choice of work address, it is currently unclear which State I will eventually go to work in when applying in China. Can I choose the most likely one? Or do you have any special requirements? (2) I need my friend in the US to help me write the check to pay the fee. I send the materials to my friend, and then after my friend adds a check, is it okay to send them to the above address? I also have my domestic addresses in my domestic materials.

Arthur Lee Esq answers:
If you self-petition an I-140 EB-1A petition, you may designate your planned state of residence in the United States as your principal workplace. If you are not sure, then you may designate your most likely state of residence in the US. Then check the 2 shipping addresses and pick the one corresponding to your proposed state of residence (which you will also list as your workplace). At the time of your consular interview, it would of course be ideal if your address/worksite is the same as the one proposed on your I-140 petition. But even if it is not, it should not affect your application since EB-1A does not have a worksite location restriction. The consular officer may ensure that you are still planning to do the work that you stated in your I-140, and if need be, amend your worksite in the system.

On your second question, you can have your friend pay your filing fee and send the package with check to the appropriate service center for your worksite. Their domestic address is irrelevant in this case. The determining factor of where the check or payment should be sent is your proposed worksite address.

1. If USCIS made a mistake on the SOC code, your best solution would be to directly contact USCIS

A reader asks:
I was about to file I-485 when I discovered the I-140 approval notice from a few years ago. But the SOC code is wrong, it should be 151132, but the notice says 111132. I don’t know if USCIS made a mistake or if the law firm applied for it and filled in 111132 incorrectly, this SOC code does not exist at all. What should I do next? If USCIS made a mistake, can I apply for I-485 and I-140 correction at the same time? If an error occurs when applying to a law firm, how should this be handled?  

Arthur Lee Esq. answers,
It is largely up to you and your law firm (if you are represented) whether to move forward with the I-485 filing at this time if your priority date is current. The error appears to be minor. However, if you wish to make the correction before filing, we suggest the following: If USCIS made a mistake on the SOC code, your best solution would be to directly contact (or have your attorney directly contact) USCIS to have them correct the mistake on your I-140 approval, possibly by placing an erequest—by going online to https://egov.uscis.gov/e-request/Intro.do, clicking the option “Typographical Error” then filling out the form fields with your information. Then where it asks “what has the typographical error?” you respond with “notice.” Where it states: “please describe the error” you respond: “On the I-140 approval *your receipt number*, the SOC code was mistakenly entered as 111132.” On “please enter the correction” you may state: “The SOC code should be entered as 151132. I understand that this approval was issued a few years ago, but neither me nor my attorney caught this mistake. If you can correct this typo that would be helpful and greatly appreciated.” Please note that this may or may not work due to the fact that your approval was issued a few years ago, and is not too recent. You could also have your attorney directly call (or you could directly call) USCIS Contact Center to explain the mistake and have them change it—the phone number is 18003755283. Please note that it is not a guarantee that this correction would come within the timeline that you want to file your I-485. If the correction does not come on time, you or your attorney (if represented) could file your I-485 with a detailed explanation on the error on the I-140 approval supplementing this with some of the pertinent evidence on the I-140, as well as a copy of your I-140 form that was submitted in obtaining the approval. Also, many I-140 approvals nowadays list not only the SOC code, but the occupational title on the approval. So if the SOC code does not match your job, but the occupational title does, this error may be relatively easy to explain and get corrected. It may also help that the SOC code listed on your approval is not even a valid code.

2. Can EB category I-485 use 245K to exempt family members from being out of status for 180 days?

A reader asks:
The work visa extension has not yet been approved. My wife’s I-485 has been submitted and the schedule is current. If the extension is approved, it will definitely be no problem, but if it is not approved, I don’t know what will happen? The wife is not a citizen. I saw a saying that EB category I-485 can use 245K to exempt family members from being out of status for 180 days. I wonder if there are any risks.

Arthur Lee Esq answers:
I answer this question under the assumptions that your wife is the principal applicant and that her I-485 application is employment-based. I also assume that you will also file an I-485 based upon your wife’s employment. In such a case, INA 245(k) applies assuming that she came into the United States on a visa rather than parole. Normally, a noncitizen is ineligible to adjust status if he/she engages in unauthorized employment, violates the terms of his/her nonimmigrant status, or fails to maintain status. However, under INA 245(k), an employment-based I-485 applicant (including dependent immediate relatives of the principal applicant who also submit an I-485) who engages in authorized employment or fails to maintain lawful status or otherwise violates the terms/conditions of his or her nonimmigrant visa following his/her most recent admission is exempted from ineligibility to adjust status as long as the aggregate period of the violations is 180 days or less. In your case, you can work for up to 240 days while your extension is pending. If your case is approved, of course as you mentioned there is no issue. If your extension is denied, the days that you work prior to the denial (while your case was pending) are authorized, but the days that you work after your date of denial will be unauthorized. Another issue in case of denial is that the number of days of unauthorized stay prior to filing your I-485 application (i.e. the number of days between your last day of authorized stay and your I-485 filing) will be counted toward that 180 for 245(k) purposes. You should ensure that the total number of days worked unauthorized + days that you did not maintain legal status does not exceed 180 days at the time you file your I-485. Your stay in the United States after I-485 filing are quasi-legal (and typically recognized as authorized) while your I-485 case is pending, but such does not apply to employment unless it is authorized. 

1. During your green card interview, it is a good idea to be forthcoming on the facts

A reader asks:
I am currently preparing the I-485, but there are some inconsistencies in my work experience in my past visa applications. I would like to get some opinions or suggestions. When I applied for a tourist visa in 2010, I filled in the name of my father’s company as my employer on the DS160 application form because I was actually working for an American company at that time. However, since this American company had no branches in China, it did not help me pay my pension insurance. Then I affiliated with my father’s company to pay my pension insurance. Later when I applied for an L-1 visa, I filled in that American company as my employer. Since then, whether it is H-1B visa, PERM or I-140 application, I have always truthfully filled in this American company as my work experience. Now I’m worried that USCIS will find this inconsistency when they review my I-485 petition. I would like to ask how to respond to this situation.

Arthur Lee Esq. answers:
In this answer, I will operate under the assumption that you answered Question #71 on the I-485 application: “Have you ever lied about, concealed, or misrepresented any information on an application or petition to obtain a visa, other documentation required for entry into the United States, admission to the United States, or any other kind of immigration benefit?” with the answer “no.” In such a case, a USCIS adjudicator may choose to overlook it as it was long ago, and you have been forthcoming with your applications and petitions ever since then, and have not had any issues to this date. Also, the adjudicator may think that such a misrepresentation was irrelevant to the visa issuance if the true facts had been known. On the other hand, a more stringent adjudicator may flag your misrepresentation as an issue—he/she may believe that you made a material misrepresentation in not listing an American company as your employer back in 2010 to increase your chances of being approved for a tourist visa. If asked about this during your green card interview, it is a good idea to be forthcoming on the facts. Some favorable factors to you may be that this misrepresentation was from over a decade ago; that you have been forthcoming on all of your applications since then; that ever since then you have dutifully maintained status and paid your taxes; that you left the United States before the conclusion of your B2 expiration during the trip in 2010; and that you are (presumably) otherwise approvable as a permanent resident. You may mention that you placed your father’s company down as your employer as that company paid your pension insurance, but the officer will likely find that irrelevant since you did not actually work at the company. By being forthcoming about the inconsistency here, the officer may decide to be lenient, and approve your I-485 anyway- especially if this inconsistency is the only red flag in your application, and if you come across as a well-mannered person of good moral character.

2. If you take a position in the Thousand Talents Program, you assume the risk of jeopardizing your immigrant visa application 

A reader asks:
I joined a company after graduating with a PhD in biochemistry in the United States. After using up my OPT, I transferred to O1. I have been unsuccessful in applying for H-1B for many years and was recently laid off. Although I had expected it and had been looking for a new home for a long time, biotech has started to lay off a large number of employees since last year. It is difficult to find companies willing to run O1 in the capital market, and I am afraid that I will have to return to China as a last resort. Fortunately, NIW can come back after a few years of waiting. Now that I’m considering returning to China to work for a few years anyway, why not try to apply for a domestic talent introduction program? However, due to previous investigation of the Thousand Talents Program, I feel that these talent introduction programs are a bit sensitive, and I am worried it will affect the green card. I’m here to ask a lawyer for advice.

Arthur Lee Esq answers:
I would not generally recommend working for the Thousand Talents Program during your time waiting for your priority date to become current with respect to China EB-2 (I assume that your I-140 EB-2 NIW petition has been approved). While this may end up being a non-factor in your immigrant visa application when your priority date becomes current, it could very well jeopardize your application as export administration regulations are a point of emphasis for the US government now, especially toward Chinese nationals. While the Thousand Talents Program may be a legitimate program in China to encourage innovation in science and technology in China, law enforcement agencies in the U.S. and several other countries have raised concerns about the program as a vector for intellectual property theft and espionage. In your immigrant visa application, you will have to disclose that you worked for the Thousand Talents Program. This may invite significant scrutiny into your application. During your interview, you will need to make clear that while you worked in the Thousand Talents Program, you never committed IP theft or improperly gave trade secrets of U.S. organizations to China. The officer may ask you pointed questions regarding the work that you did with the Thousand Talents Program, and whether you have utilized knowledge attained in the U.S. (and the nature of the knowledge) to perform your tasks or worse, provided training based upon your knowledge gained in the U.S. Therefore, while the Thousand Talents Program may be your highest paying and most prestigious employment option while waiting in China, you assume the risk of jeopardizing your immigrant visa application if you take a position in such a program.

3. Is it considered fraud if submitting an I-485 application immediately after entering the country with a nonimmigrant visa?

A reader asks:
The main applicant F1 OPT recently submitted I-485 in the US, and his spouse in in China and plans to enter the country with an F2 visa in the near future. Please tell me does F2 have to wait 90 days after entering the country before submitting the I-485 application? It is said that submitting an I-485 application immediately after entering the country with a nonimmigrant visa is considered fraud. Does this also apply to F2? She had stayed in the US for several years on an F2 visa. She returned to China last year for business, and now she wants to come back and submit I-485.

Arthur Lee Esq. answers:
The question when filing the I-485 with respect to the previous entry is one of intent. Upon reviewing the entry preceding the I-485 application, a DHS adjudicator may seek to determine whether the applicant misrepresented his or her intent at the consulate when he or she applied for the nonimmigrant visa or upon entering the U.S. While the 90 day rule is no longer a rule but more of a guideline at this point, if somebody does something in the United States within the first 90 days of entry that contradicts the conditions of the visa, then a strict adjudicator may flag the case. In your case, if your spouse enters under an F2 visa, which has a nonimmigrant intent requirement, and files the I-485 shortly after entry, he or she may question your spouse’s original intent when entering the United States. It may be possible to successfully address such concerns and still be approved for permanent residence but be aware that her case could become problematic.

1. If you add the skill set yourself to an already-signed letter , then this is fraud, your application may be denied, and may face criminal penalties.

A reader asks:
Currently, I am still in the PWD stage, and I discovered that my former company missed a whole Skills set section in the Experience letter. The lawyer said it must be exactly the same as the template details and skills he provided. The troublesome thing is that the HR of my former company is very annoying and has poor professional skills. He did not write according to the template provided by my lawyer at all, and he has not yet sent me an experience letter. If I add this skills set myself, will the Immigration Bureau treat it as fraud? Will it result in an RFE for I-140?

Arthur Lee Esq. answers,
I will note that each company or attorney writes their prior experience letters on behalf of employment-based green card applicants for former employees differently. That being said, the reason that these letters is written is so that the green card applicant has evidence backing their claims of being qualified for an employment position used in a green card application. For example, if a petitioning employer’s Software Developer position requires “Bachelor’s degree in Computer Science + 2 years as a software developer including use of Python and Ruby on Rails,” then the permanent resident applicant employee must provide evidence that he/she has the Bachelor’s degree in Computer Science, as well as the 2 years of experience as a software developer including the use of the two aforementioned technologies. So in order for it to be useful, a prior experience verification letter by a former employer should mention that the applicant had worked as a Software Developer for 2 years full-time (list dates), and state duties/responsibilities that clearly show that the applicant had experience using Python and Ruby on Rails while on the job.

In the case of the HR of your former company, you or your attorney may draft the letter including your responsibilities and skills so as to clearly show that you acquired some of the skills and experience qualifying you for your green card position at this previous position. If you or the attorney drafts the letter, and then the HR department signs it, then that will work for USCIS since your previous company was willing to attest to your experience. If you add the skill set yourself to an already-signed letter that they did not attest to, then this is fraud and your application may be denied, and in addition you may face criminal penalties. If USCIS doubts the authenticity of the letter, it may issue an RFE asking you to obtain further verification from the company, and make further showings that you are indeed qualified for the green card position.

If your former employer is unwilling to sign off on a letter verifying your experience, you should work with them to see what they are willing to attest to (i.e.—are they willing to attest to your dates of employment and your title, but not your specific job duties? Or merely willing to attest just to your dates of employment, as sometimes HR departments are only willing to do?) If you are unable to obtain a signed letter from your previous employer, or have a signed letter that only verifies portions of what is needed to meet your requirements, you may have others (such as a coworker, peer, or anyone else who can attest to your employment) write letters verifying your experience, stating their relationship to you and how they know that you had the experience. Additionally, you may provide old work samples if any to serve as further evidence of that experience. You may also sign an affidavit yourself that you were employed at the former employer, what position you had, for how long, and what specific responsibilities you had and skills you acquired. However, the likelihood of an RFE increases if you are unable to submit a signed letter verifying your experience in its entirety from your previous employer.

2. A J-1 requirement is an intent to return home at the end of the J-1 stay

A reader asks:
After I graduated with a Ph.D. in the United States, I used OPT to work in the United States for two years. Later, I left the United States due to the epidemic and worked in Europe. I recently got a postdoctoral offer from an American university and applied for an American J-1 visa in Europe. I applied for NIW overseas earlier this year and my attorney filed Form I-140 last week. The current status is that it has been received and the receipt number has been obtained. However, the DS-160 form for my J-1 visa has not been submitted yet, and I am very anxious now. If I apply for J-1 again, will it be rejected instantly due to my immigration tendency? Is it not safe to apply for J-1 and it is better to apply for H-1B or B-1 instead?

Arthur Lee Esq. answers:
While it is not certain that your J-1 will be denied, your immigrant intent with your filed I-140 may be hard to overcome in your J-1 application since, as you know, a J-1 requirement is an intent to return home at the end of the J-1 stay. You must overcome the evidence of immigrant intent by demonstrating that you plan to return home upon the completion of your J-1. This can be done by showing your ties to your country of residence such as a deed or lease, family ties, employment ties, a return ticket, and anything else that would demonstrate that you intend to return home after the expiry of your J-1. However, it is ultimately up to the discretion of an officer as to whether to grant the J-1 visa and believe your intent to return home, and a filed I-140 is often challenging to overcome when it comes to demonstrating nonimmigrant intent. Also, with a J-1 visa, you should also check whether you will be subject to any 2-year residency requirement. A 2 year residency requirement may delay your ability to take up permanent residence in the United States even after your priority date becomes current. In applying for a B-1 visa, you would face the same challenges in terms of proving nonimmigrant intent. There is not much more benefit in trying to apply for a B-1 than a J-1. If you are eligible for an H-1B either as a cap-exempt applicant or as somebody who wins the cap lottery, the H-1B visa would be a good option for you as it is a dual intent visa where your NIW application will not pose a problem.

3. The general rule of thumb with the Department of State is that if you cannot obtain a required document, you must submit a detailed written explanation

A reader asks:
My parents applied for a green card overseas and after filling out the parent information DS-260 form online, it showed that in addition to my parents’ birth certificate, my birth certificate, and my parents’ marriage notarization, they also needed my marriage certificate. My original marriage certificate is no longer available, only a copy. Will my application be rejected if I don’t have the original documents during the parents’ interview? Because it is shown above that all uploaded electronic versions need to be provided with notarized originals during the interview.

Arthur Lee Esq. answers:
While your marriage certificate would not seem to be that important of a document in your parents’ cases to require the original document, the general rule of thumb with the Department of State is that if you cannot obtain a required document, you must submit a detailed written explanation to the consulate as to why this document cannot be obtained. If you were married in the US, you should be able to obtain a certified copy of this marriage certificate through contacting the city or state clerk of the place you were married. If you were married in China, your parents can try to go to the appropriate government agency there to obtain your original notarial marriage certificate. This would typically be the local marriage registration office of the local civil affairs bureau of the jurisdiction where the marriage took place. Otherwise, your parents can go to the interview armed with a notarized detailed explanation by you as to why you could not obtain the original marriage certificate, and any further evidence you can provide such as your correspondences with the appropriate agency for the marriage certificate. The interviewing officer may grant the immigrant visas for your parents at his/her discretion even without the marriage certificate, or he/she may determine that your parents should obtain your marriage certificate and give a denial for lack of documents which can be overcome when your parents submit the marriage certificate or give further evidence why the original is not available.

1. EB-1 main applicant in the US under O-3 can submit I-485 once the I-140 priority date is current

I am in China, and my EB-1A PD is in April 2023, but my child will graduate junior high school in another year. I want my child to go to a public high school in the US as early as possible, but the current schedule predicts that it will be difficult to land within 2 years, which will delay my child’s high school enrollment. It is inconvenient for the EB-1A main applicant to apply, but the conditions for the O-1 spouse are similar to those of the main applicant. Can my spouse apply for O-1, and my children and I apply for O-3? At that time, while the main applicant is waiting for the I-140 current, can he submit the I-485 in China as an O-3?

Arthur Lee, Esq. answers,
As long as your wife meets the eligibility requirements of O-1 on her own (not through your accomplishments as a dependent), she can apply for O-1 status with you and your children as O-3 dependents. Please note that the eligibility conditions of the O-1 spouse are not similar to those as the main applicant. The O-1 applicant needs to independently establish eligibility (e.g. extraordinary ability in the sciences, education, business, athletics, arts or extraordinary achievement in the motion picture or TV industry)—the spouse applicant needs to show a bona fide marriage to the principal O-1 applicant. So unless your wife can demonstrate her own eligibility for O-1 status, your plan would not work. If she can demonstrate that she has extraordinary ability in one of the above fields and meets all other criteria for O-1, then she can be the O-1 principal, and you and your children can be O-3 dependents. If the O-1/O-3 petition is successful, then your wife will be admitted to the United States to work with her petitioning employer or agent under the employment conditions stated in the O-1 petition. Then you and your children will be admitted as O-3 dependents. As an O-3 dependent, you will not have work authorization, but your children will be allowed to enroll in school. Please note that you would not be in O-3 status until you arrived in the United States—upon your wife’s O-1 approval, you would be eligible to enter the United States and “activate” your O-3 status. While you are in the United States under O-3, you can submit your I-485 application once your I-140 priority date is current. If you are still in China, you can wait until your priority date is current and then apply for an immigrant visa via Form DS-260. But an I-485 is reserved for those who are already in the United States.

2. To verify the applicant’s experience, the Immigration Bureau can call the previous employer

Will the Immigration Bureau really send or call the former company for verification? If there is a small discrepancy in the employment verification letter, will it result in an I-140 audit? Is this used when applying for I-140? Or is it when PERM advertises? If my former employer does not add skills set to me, is it necessary to file a lawsuit?

Arthur Lee Esq. answers,
It is possible that USCIS calls your former employer who writes you a prior experience affidavit to truly verify your experience, especially if it has reason to doubt the legitimacy of the affidavit. If there is a small discrepancy in your letter, USCIS may either call the company to ensure that you acquired the skills and remained in the stated position for the time that the letter attests—in this case, USCIS may also ask the company how they know what they are attesting to in the letter. It may also issue a request for further evidence (not an audit) offering you an opportunity to explain the discrepancies and clarify other issues in your I-140 case. The employment verification letter is indeed used when you are filing an I-140, not when the PERM ETA 9089 is submitted. You would not win any lawsuit against your former company for not adding a skills set for you. Whether they are willing to attest to your particular skills, responsibilities, titles or dates of employment is entirely up to your former company.

3. It is more advantageous to submit NIW after obtaining a PhD

My conditions are not very favorable. I have a master’s degree from the United States and am currently studying for a PhD. I am considering whether to apply for a green card and when to apply, so I contacted several law firms, but after seeing the responses from the law firms, I am now hesitant whether to do NIW after the PhD graduation article is sent out, or to do it now. Core contradiction: Apply again when you have a new paper after PhD graduation vs. apply now?

Arthur Lee Esq. answers,
The answer to this really depends on how much evidence you currently possess that you are well-positioned to advance your field of endeavor, that your field of endeavor has substantial merit and national importance, and that on balance, it would be beneficial to the United States to waive the requirements of a job offer. While I cannot speak to whether your proposed endeavor has substantial merit/national importance as you do not specify what your Master’s and PhD degrees are in, and what type of work you are proposing to do, whether you have a PhD when you apply will factor into the second and third prongs (that you are well-positioned to advance your field of endeavor, and on balance, it would be beneficial to waive the requirements of a job offer). In adjudicating whether you are well-positioned, USCIS typically considers evidence such as degrees, certificates, or licenses in the field; your patents, trademarks, or copyright; letters from experts in your field describing your past achievements; published articles or media reports about your achievements or current work; citation history of your works; evidence that you influenced your field of endeavor; correspondence from prospective or potential employers and customers; evidence that you have attained investment from U.S. investors such as venture capitalists; contracts, agreements, or licenses showing potential impact of proposed endeavor; evidence of receiving awards and grants for your work in your field of endeavor; and evidence showing how your work is being used by others. If you have a plethora of the above evidence to meet the second prong, you might be able to submit an NIW application with confidence without finishing your PhD study and dissertation. However, if your evidence is more limited, it would be a good idea to secure the PhD and release your PhD graduation article before submitting an NIW case as that would further demonstrate that you are well-positioned to advance your field of endeavor. Your PhD completion may also be favorable in the adjudication of the third prong (on balance, it would be beneficial to waive the job offer requirement) since having a PhD may enhance the potential benefits to the US from your contributions, even if other U.S. workers were available. However, you should make this evaluation of whether you want to submit your NIW application before or after your PhD completion based upon the balance of the remainder of your evidence, and the overall benefits/risks of filing earlier rather than later for your particular situation.

1. When the quota limit is reached, the visa bulletin dates do retrogress

A reader asks:
It is said that quotas for the next fiscal year will be released in October this year and the schedule will be advanced. However, I have seen many forecasts saying that the schedule is likely to be advanced by 2-4 months. Currently, China’s EB-1A List A is in February 2022. If the new fiscal year starts only 2-4 months ago, shouldn’t this schedule be getting longer and longer and never disappear? I heard that India’s EB-1A schedule has gone back to 10 years ago. I don’t understand. If you can’t handle it, just stop. Why is it going backwards?

Arthur Lee Esq. answers,
At the time of answering this question (January 2024), the EB-1 China Final Action Date is July 1, 2022. As you are probably aware, the visa bulletin dates do not work in a straight line corresponding to calendar dates. Indeed, they sometimes do retrogress. This is due to the fact that Congress sets limits on the number of immigrant visas that can be issued each year (usually 675,000 across all visa categories, and 140,000 for EB-categories), and divides them among foreign nations. It is possible for countries to be oversubscribed—have more visas demanded for specific categories than visas available for the year. This is often the case with EB-categories with respect to China and India. According to the USCIS website, visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month—and retrogression typically happens toward the end of a fiscal year. The cut-off dates of the visa bulletin are determined by the Department of State after consideration of variables including number of visas used to that point, projected demand for visas, and number of visas remaining under the annual numerical limit for that country/preference category. For India, the EB-1 category is actually up to September 1, 2020 for Chart A. However, when a date retrogresses, it typically means that the Department of State is oversubscribed to the point that there is no visa available for the date that was posted on the visa bulletin for the previous month. DOS/USCIS are then not able to adjudicate cases from a specific priority date (although it had reached that date previously) due to unavailability of visas to fill that date while still granting visas from dates prior to that date.

2. Should Change Job Affect the Validity of an Approved NIW?

The NIW was approved recently, the priority is current, and the I-485 has just been submitted. Can I change jobs in this situation? I have a good job opportunity and want to go to the same industry with the same job content.

Arthur Lee Esq. answers,
Since an NIW does not require a job offer or labor certification, changing employers should not affect the validity of your approved I-140 NIW and you should be able to change jobs without affecting the approvability of your I-485 assuming that your next job is in your proposed field of endeavor stated in your NIW application. Since your job will be in the same industry with the same type of job description, it would be appear acceptable for you to switch to this other opportunity. This answer assumes that you self-petitioned on your EB-2 NIW. If you had an employer petition for you on your EB-2 NIW, you may encounter difficulties with USCIS if you change positions at this time although you may be eligible to port your case 180 days after the I-485 has been filed.

3. NIW Approved But PD not Current, May Come to the US With B1/B2 for a Meeting

A reader asks:
I am planning to work in Canada for a short period of time after applying for NIW. Before I get the priority date of I-140, am I inclined to immigrate? Can I apply for a B1/B2 and come to the United States for a meeting during the waiting period?

Arthur Lee Esq. answers,
I assume that you mean that you have already applied for an NIW and secured a priority date, but it is not yet current. In this case, you would ordinarily wait until your priority date becomes current, assuming your NIW is approved, before you immigrate. This is unless you have another means of immigrating, such as an immediate relative petition or a current family-based petition; or if you come in on a dual intent visa such as an H-1B or L-1 which allows you to have an immigrant intent when you enter the United States. If you need to come to the US for a meeting, you can do so on a B1/B2 visa. However, due to your pending I-140 which shows your intent to eventually immigrate, you will need to clearly demonstrate to a consular officer that you will depart the country and return home after your B-1/B-2 period of stay is over. You can do so by showing that the main purpose of your trip is this business meeting which is a permissible activity under B-1, and that you have ties to your home that you intend to return to such as family, lease or deed, job, and a return plane ticket.

4. My I-140 has been Approved for More Than 18o Days but Was Laid Off.  Will it Be Possible to Retain the Priority Date and Transfer to B-1 to Look For a Job?

A reader asks:
It has been more than 180 days since my I-140 was approved, and the priority date has more than half a year to wait, but I was laid off. If I can’t find a new job within 60 days, transfer to B-1 and continue to look for a job. After finding a job, can I use H-1B transfer to continue to keep the priority date?

Arthur Lee Esq. answers,
You will be able to retain your priority date as long as your approved I-140 is not revoked for fraud, misrepresentation or material error, and your labor certification was not revoked or invalidated. This is regardless of whether you are in or outside the United States. If you fall outside your 60 day grace period in finding a new job after you were laid off, you may apply for a B-1 change of status. Just ensure that your I-539 change of status application is filed before the end of your grace period. During your time in B-1 status, you are allowed to interview for a job. Once you are hired at a position, then you must file an H-1B transfer to your new employer.

5. Submit EB-1A and I-485 need Paystubs and Tax Returns

A reader asks:
I would like to ask, do the recently submitted EB-1A and I-485 still need a three-month paystub or a three-year or one-year W2 or IRS transcript?

Arthur Lee Esq. answers,
Generally, it is a good idea to submit your 3 most recent pay statements and copy of your most recent tax return and W-2. These documents should be submitted to prove that you will be working in your field of expertise as stated in the I-140 and that you will not be a public charge. If you are not working in your field of expertise, you should include evidence that you will be working in your field of expertise such as a signed statement that you intend to work in the field stated in your I-140 along with supporting evidence showing that you are still engaged in that endeavor. If you do not meet the federal poverty guidelines in your most recent tax return for your household size, you may wish to get a financial cosponsor. 

1. H-1B Transfer Petition Usually Takes About 2-4 Months

A reader asks:
Recently, I have changed my job, and I hope to hear the lawyer’s opinions about my H-1B and EB-2 green cards issues. 1. About H-1B. If I am in the current company but change positions, will it be affected? 2. About H-1B. If I go to a new company, how long will the transfer take? If I want to go back to my country, do I have to wait until the transfer is completed? 3. About EB-2. My priority date is March 2020 and is not current yet. Assuming my start date at the new company is six months away, can I ask the new company to start with EB-2 (PERM), if my boss agrees. 4. If the new company provides EB-1C, can my EB-2 PD be used directly? 5. Assuming that my position in the current company has changed, but the job itself does not change, will it affect my current EB-2 status? What kind of situation can be considered as no impact?

Arthur Lee Esq. answers,
Your questions will be answered in the order that you presented them: (1) typically, if your job changes within your company you will need to file an H-1B amendment. If you take on significant new job duties or work in a higher-level (i.e. promoted to management etc.) you will need to file an H-1B amendment. If your job title changes without significant change in your job duties, then you may be excused from filing an H-1B amendment. This may be somewhat complex and an experienced immigration lawyer would help; (2) An H-1B transfer petition typically takes about 2-4 months for USCIS to adjudicate. The case may be filed in about 2-3 weeks if your petitioner/lawyer prepares it expeditiously. You may also apply premium processing on your H-1B transfer to receive a decision or further action in 15 calendar days. You may begin working for your new employer once your transfer petition is properly receipted by USCIS. However, you risk falling out of status and unauthorized employment if your H-1B transfer petition is ultimately denied. In the alternate, you may continue to work with your current employer until your H-1B transfer petition to the new company is approved. It would be a good idea to wait until your H-1B transfer is approved before going overseas since a consular officer will want to see your valid H-1B status paperwork as well as proof that you are employed with your new H-1B petitioner; (3) Yes, your new company can start the PERM process for you at any time as long as they intend to employ you upon your receipt of a green card; (4) Your old priority date can be used so long as your old I-140 approval was not revoked for fraud, misrepresentation, or material error and your labor certification was not revoked or invalidated. That being said, your will need to have your new I-140 under the EB-1 category approved before you can apply for permanent residence via consul processing or adjustment of status. (5) If your position changes from your EB-2 position, but your duties and responsibilities do not change, you should generally still be able to use it as the basis for your green card application. As a rule, your new job can be “ported” to your green card case if 180 days after your I-485 is filed, you are working in a new position that is a “same or similar” occupation that was originally petitioned for you (assuming other eligibility criteria are met). Therefore, if you are in a different position with similar responsibilities, or elevated responsibilities (e.g. financial analyst -> financial manager) you may be eligible for porting to your new position under your approved EB-2 I-140.

2. You Cannot Work in the U.S. While Traveling in the U.S. and EB-3 is Waiting for Priority Date to Become Current .

A reader asks:
I applied for I-140 in China, it has been approved, and I am waiting for the schedule. I want to take my children to the United States, and I have already booked the air tickets, but when I just registered for EVUS, I encountered a problem. The question is, how do I report whether you are currently seeking employment in the U.S. or are you working in the U.S. without prior permission from the U.S. government? How do I answer that?

Arthur Lee Esq. answers,
On the question of whether you are currently seeking employment in the US or have worked in the US without prior permission, you should answer “no” assuming that you have never worked in the US without authorization. You have an approved I-140, and are waiting for your priority date to become current. This will be future employment for you. On this particular visit where you will take your children to the US as tourists, I assume that you will not be seeking employment. You will be there strictly for pleasure. Therefore, you can answer “no” and just visit the US without taking employment on this visit, and then move there on a permanent working basis on an immigrant visa once your priority date is current and you are successfully interviewed at the U.S. consulate.

3. Once 180 Days Elapse from the Filing of Your I-485, You May Port to a New Job in a Same or Similar Occupation.

A reader asks:
I have just submitted I-485 in the Bay Area for a month, but I feel that I may be fired. Now the market is generally uncertain whether I can find a new job within 60 days. In this case, if the USCIS does not process my case within 180 days, and then I find a similar job within 180 days, can I use I-485j port at that time?

Arthur Lee Esq. answers,
Yes. Once 180 days elapse from the filing of your I-485 application, you may port to a new job in a same or similar occupational classifications as the one that was the basis of your I-140 assuming your I-140 is approved or will ultimately be approved.  However, please ensure that your job is indeed in the same or similar occupational classification. You can do this by comparing your new job title and responsibilities with your old job title and responsibilities. Look at your previous I-140 petition for your job title, responsibilities, and importantly, the SOC code of your old position. If your new job may fall into the same SOC code, then chances are that your job can be ported. If it is a natural career progression of your old position (e.g. computer systems analysts to computer systems managers) then your job is likely portable as well. If your job is in a “similar occupational classification,” meaning that your occupation shares essential qualities with the occupation on your I-140, then your job may be portable. As part of this evaluation, officers may consider various factors relating to the jobs such as the SOC codes assigned to the respective jobs; job duties; job titles; required skills and experience; educational and training requirements; licenses and certifications specifically required; offered wage or salary; and any other material and credible evidence relevant to a determination of whether the new position is in the same or similar occupational classification. It is a good idea to consult with an experienced immigration attorney on job porting issues.

1. All Evidence should be Provided When Receiving RFE

A reader asks:
I am the main applicant and received the RFE letter from USCIS yesterday, and my wife also received the RFE letter. My letter mainly asked to prove the authenticity of the job offer, and when I submitted the I-485, I filed the I-485j together. I don’t know why I still need to prove the authenticity of the job offer. I don’t know why USCIS will ask me to provide information such as company financial statements? Mine is a large company, and information such as financial reports is public, and there is no possibility of problems. How should this question be answered? The wife’s letter requires proof of two things. One is to prove F-1 and OPT status. We intend to provide transcript proof directly. Not sure if a transcript is enough? Is there anything else that needs to be provided? The second is to require proof of legal status during the OPT extension. We have provided the I-20 and EAD card during the original filing, which shows the identity of the OPT extension. I don’t know why it is still required to provide proof materials? What other supporting materials do I need to provide?In fact, I feel that the materials required by the officer are not very important. For example, my company’s information and the two items my wife studied can completely pass the I-20 certificate that has been submitted. I really don’t understand what USCIS is trying to prove?

Arthur Lee Esq. answers:
You should understand that USCIS is an imperfect agency with officers of many different levels—some are better trained than others. As such, some officers will ask for further documents for things that other officers may conclude have already been proven. Some officers will know that a large, profitable, publicly traded company will have the finances to pay your salary. Others may not do their due diligence and research the companies on their own. Regardless, if you receive an RFE, it is a great idea to comply and provide all the evidence that the RFE asks for. RFEs will typically specify the types of documents that you should provide to fulfill the request. You should gather as many of those listed documents as possible to satisfy the adjudicating officer. Besides all the listed documents, I would advise you gather the following: (1) to prove the authenticity of your job offer, you may submit a signed letter from your company verifying your employment (specifying the date you were hired, that you are fulltime, what your position is, and your salary), as well as 2-3 months worth of recent paystubs; (2) if USCIS wants to verify the company’s finances, you may request the tax returns from your company, or in your case since it is a public company, just submit the most recent year’s tax returns and/or public financial documents such as the company’s 10-K, and/or a statement from the chief financial officer concerning the size of the company, your salary, and that the company is willing and able to pay the salary upon your obtaining permanent residence status; (3) USCIS typically requires a showing of maintenance of legal status at all times in the US for employment-based green care cases—so your wife must show that she has been in legal status for the time she has been in the US. Therefore, she should give in all I-20s since arriving in the US, diplomas and transcripts for all studies in the US, a letter verifying employment on her OPT status, as well as 2-3 months worth of recent paystubs.

2. Your EB-3 Priority Date Sometimes Can Be Used for Your EB-2 NIW

A reader asks:
My company is going to help me apply for EB-3. I plan to apply for NIW by myself, then resign and return to China to wait for the schedule. Excuse me, if so, can the PD of my company’s EB-3 be used in NIW? After I resign, the company’s EB-3 PD will no longer be available?

Arthur Lee Esq. answers:
You can use the priority date of your company’s EB-3 for your EB-2 NIW case only if certain conditions are met. Please note first that the priority date under EB-3 will be the date on which the PERM labor certification application (ETA 9089) is filed, which is after your sponsoring company performs recruitment and a test of the U.S. labor market. You may retain your priority date as long as your EB-3 I-140 is approved, and not subsequently revoked for fraud or misrepresentation, material error, or revocation of or invalidation of the labor certification. As long as all of these conditions are met, you may retain your priority date for an EB-2 NIW filing.

3. You May Leave the United States and Wait for Your Priority Date to Become Current While You Are Overseas

A reader asks:
I applied for NIW in the United States in March this year, and I-140 has been approved. After that, I will submit I-485 when the pd current of NIW is current. Recently, I want to go to Europe or other countries to study a related professional PhD. May I ask, in this case, is it still useful to apply for PD in the United States? If it is possible, will it not be approved when I submit I-485 later? If you can re-enter the United States, what visa should it be?

Arthur Lee Esq. answers:
You may leave the United States and wait for your priority date to become current while you are overseas. As such, you can leave the United States and go to study in Europe without affecting your priority date and your eligibility for the green card. Then when you are in Europe, if your priority date is close to current and the I-140 was marked for overseas processing, you may file a DS-260 immigrant visa application to apply for consular processing and obtain permanent residence upon entry to the United States assuming your interview was successful. Or if you wish to come back to the US after your study is done and subsequently apply for an I-485 adjustment of status application for permanent residence, you should apply for a visa that is appropriate for your situation. It would be best if you filed for a “dual intent” visa that allows you to enter the United States whether you intend to stay permanently or return to your home country. H-1B and L-1 visas, for instance, are dual intent visas. An O-1A or O-1B (although not) is also often treated by adjudicating officials as a dual intent status. If you come in on a visa that does not allow dual intent, such as a B-1/B-2 visitor visa, and then apply for an I-485 based upon your approved NIW, you risk being accused of misrepresentation by an adjudicator. A USCIS adjudicator may find that you had intended to enter and remain in the United States on such a visa that can only be granted to somebody who intends to leave the United States before expiration. Therefore, in your situation assuming that you definitely leave to go to Europe and study, your best alternatives would be to either: (1) apply for a green card at an overseas consulate when your priority date becomes current and enter the United States as a permanent resident assuming you pass your immigrant visa interview; or (2) come back into the United States on a dual intent work visa such as H-1B or L-1 assuming that you qualify for one of these, then apply for I-485 when you are in the United States. On possibly entering the United States on a non-dual intent visa such as an F-1 schooling visa or B-1/B-2 and applying for adjustment of status once your priority date becomes current, the question of intent could possibly be helped by the interim of time that passes from your entry and the filing of Form I-485. I also note that it is positive that you are studying for a PhD related to the field of your NIW endeavor since that will help demonstrate to an immigration officer that you are committed to your field of endeavor as stated on your approved I-140.

My I-485 is pending now, and my H-1B is about to expire. Last month I just filed my H-1B extension, and it is currently pending. My wife is my dependent and just filed her I-485, and planning to apply her H-4. My question is, if my I-485 is approved, will my H-1B be invalidated immediately? Will my wife’s H-4 application be affected?

Arthur Lee answers:

I see that you are concerned about the fact that your wife filed later than you for I-485 benefits and that you may be approved before your wife. Unfortunately, your wife’s H-4 application becomes invalid as soon as you are approved as a permanent resident. That is because you no longer hold H-1B status as soon as you become a permanent resident. H-4 is not an independent status and is entirely dependent upon there being a H-1B principal. That being said, your wife is allowed to stay here legally during the time that her I-485 application is pending. If she requires employment authorization, she can apply for an EAD based upon the adjustment if she has not already done so.