Author: Arthur Lee

1. If PERM position changes, there should be some coordination between your attorney and your employer.

A reader asks:
My current position is QA, and I want to transfer internally to SDE position, and the work location remains unchanged. PERM is still in the advertising stage. Some people say that in my case, I will most likely have to go through the PERM process again because my job title and job content have changed. But some people say that I can ask my lawyer to submit a PERM according to the original title, get the PD first, and then submit a PERM with the current title. I wonder if this is feasible. Or can I communicate with the boss of the new group, although the position has changed, the job content should remain the same as before. Do I need to resubmit the PERM in this case? I didn’t dare ask the lawyer, mainly because I was worried that they would notify my current boss. If the group is not transferred, I will be embarrassed.

Arthur Lee Esq. answers:
In this situation, there should be some coordination between your attorney and your employer. If it is in the best interests of your company to keep you on as an employee, then your boss should make all efforts to ensure that your employment there will work for your immigration solution. Therefore, if there is a promotion or a transfer of your job, your attorney should know and work with your employer to make it work for you.
As you are aware, if your job changes at your company now, your ETA 9141 prevailing wage is no longer valid and you will need to put in a new prevailing wage with your current position. Advertising your current position and submitting an ETA 9089 with your old position would be fraud unless your company planned to employ you in your old position upon your receipt of permanent residence. The best advice here would be to get the parties to cooperate with one another, with your input as well, and figure out how to make the company’s needs align with your immigration needs.

2. Leaving your job before I-485 approved, your future N-400 application may face challenges

A reader asks:
180 days after I submitted my I-485, I resigned from my previous company, but before I joined the next company, I received a notification that my green card was approved. The new company said that if I submitted an I-485J, the immigration office would not accept it, and told me that there was no problem. May I ask how to deal with this situation? Will it affect the renewal of my green card or naturalization in the future?

Arthur Lee Esq. answers:
Generally leaving your job that was the basis of your I-485 application soon after or before your I-485 is approved will attract more scrutiny on your green card renewal applications and your N-400 applications. So while you have the green card, your future applications may face challenges because USCIS officers may question whether your PERM labor certification jobs were fraudulent and your PERM employer did not truly intend to employ you in the stated job on your I-140 petition. To mitigate the risks in the future, you could take the following steps. First, you should maintain all documentation of your change of job. This includes your resignation documentation from your PERM employer; and your job offer with your new company including position title and description, salary, and start date. While USCIS will not accept your new I-485J application at this time, you should maintain documentation that your new position would have been one in which an I-485J was approvable—your new position is in a “same or similar” job occupation as the one that you left—and that you just were unable to submit the I-485J due to the timing of the I-485 approval. You should bring any and all of this evidence to an N-400 interview. Second, you may wish to submit your N-400 at a later date than the 5 year green card anniversary since the N-400 form only asks you to disclose your employment history for the previous five years. Third, you may decide to keep your permanent residence card and not apply for naturalization.

3. Standard processing for EB-1A I-140 petitions takes 13 -14 months.

A reader asks:
My major is computer artificial intelligence, with more than 10,000 citations in various journals, and many more editorial review and award-winning papers. In March this year, I applied for EB-1A and submitted I-140. The immigration office also received it and gave me receipt, and then nothing happened. I have been waiting until now, and I have seen others get approved in a few days or one or two months. May I ask, what is my situation?

Arthur Lee Esq. answers:
It appears that the others you heard about who were approved within a couple of months or a few days were either very fortunate in their processing times, or applied for premium processing. Standard processing for EB-1A I-140 petitions are taking 13 months at the Nebraska Service Center, and 14 months at the Texas Service Center. Therefore, it appears that your I-140 petition is still being adjudicated within standard processing times. If you wish to speed up your adjudication, you may apply for premium processing, which costs $2,500 and will guarantee further action on your case (approval, denial, or request for further evidence) within 15 calendar days. The merits of your case do not appear to have much bearing on the speed of your adjudication here. Best of luck to you.

4. NIW and O-1 can be submitted with premium processing at the same time

A reader asks:
I want to apply for an O-1 visa and prepare to apply for a national interest waiver. May I ask, can I submit NIW and O-1 applications both at the same time, and then pay an accelerated processing fee to accelerate both applications at the same time?

Arthur Lee Esq. answers:
Yes it is possible to submit both with premium processing at the same time assuming that you are willing to pay the expenses. To premium process the O-1 petition, you may submit Form I-907 premium processing request to the service center with a payment of $2,805 to ensure that you receive further action from USCIS (decision or request for further evidence) within 15 calendar days. For the EB-2 NIW, you may submit Form I-907 premium processing request with the appropriate service center along with payment of $2,805 to ensure that you receive further action with USCIS (decision or request for further evidence) within 45 calendar days. Good luck to you.

 

1. USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on a valid H-1B visa. 

A reader asks:
I submitted my I-485, I-131, and I-765, but they haven’t been approved yet. I initially thought leaving the country would only mean forfeiting the I-131 and I planned to return to the U.S. on my H-1B visa. However, I later realized that if I don’t have a combo card, my case will be rejected if I’m abroad with the I-485 being processed. Is this true? My question is, can I leave the country six months after submitting the I-485?

Arthur Lee Esq. Answers:
If you are in valid H-1B status with a valid visa in your passport, USCIS will generally not deem your I-485 application abandoned if you depart the United States and return on the H-1B visa. Assuming that your H-1B visa and status will still be valid 6 months from now, and that you will still be in the same job which conferred you H-1B status, USCIS will not likely deny your I-485 due to your travel outside the United States. To minimize your risk of being denied entry on your H-1B visa, you should bring your official H-1B approval as well as sufficient evidence that you are still in your H-1B job being paid at least the salary stated on your company’s I-129 petition on your behalf. Such evidence may include but is not limited to a job letter by the company verifying your position title and salary, and recent paystubs from your employer.

2. A Porting Determination

A reader asks:
I applied for EB-3, had my green card interview in October 2023, but it has been stuck at “Interview Completed, Under Case Review” until now (October 2024). I emailed the immigration office, and their response was that my case is still within the normal processing time. I’ve already submitted my I-485 and received a new offer, but the base salary is $20,000 less than my old company. If i take this new job and submit a new I-485J with the new company, will the lower salary affect my case?

Arthur Lee Esq. Answers:
Under job porting, you are allowed to take a position that is in the “same or similar” occupational category as your position that is the basis of your I-140 petition. After you submit your I-485J (which can be submitted in response to an RFE, at an adjustment of status interview, or proactively if you wish), USCIS will take a myriad of factors into account to determine whether your position is “same or similar” to the one that is the basis of your I-140 approval. These factors include but are not limited to the DOL assigned occupational code for the new position; the job title; job duties; required skills and expertise; educational and training requirements; licenses or certifications typically required; offered wage or salary; and any other credible evidence submitted that demonstrates that the position is in the “same or similar” job classification. USCIS understands that sometimes employees find themselves in situations (such as being laid off or feeling disgruntled in a place they work) where they must make lateral moves or even take lower salaries. So in your situation, the lower wage is a negative factor. However, that may not be fatal in a porting determination if on balance, the rest of the listed factors demonstrate that your job is in a “same or similar” job occupation.

It is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days

A reader asks:
I submitted a PERM application in January 2024, and based on my current processing times, I expect it to be approved around February or March 2025. I plan to have my lawyer immediately submit the I-140 after PERM approval with premium processing. I predict that I will receive I-140 approval around March or April 2025. If I want to switch to a new company immediately after getting I-140 approval, based on this timeline, should I first have my current employer file an H-1B extension, or if I find a new employer before the end of June (my initial 3 year H-1B expires in June 2025), should I have the new employer file the H-1B extension? Should I have the old employer file the extension then switch employer after 180 days?
Arthur Lee, Esq. Answers:
My general recommendation would be to have your current employer file an H-1B extension on your behalf. Job porting only works if you have an I-485 application that has been pending for at least 180 days and you work in a position that is in a same or similar occupational classification that is the basis of your I-140 approval. If you have your I-140 petition approved, then switch to a new job immediately without having an I-485 application filed and pending for at least 180 days, then your PERM ETA 9089 and your I-140 approvals will not be valid for your I-485 application. You will not be able to port in this case. If you do move to a new position, then you will need to start the PERM process over. The only thing that you might retain is your priority date assuming that your soon-to-be previous employer has not timely revoked your I-140. Unless your employer is still willing to offer you the I-140 position upon your I-485 approval (which seems unlikely in this case), you would need to have your new employer start over from scratch in the PERM process. Therefore, it is not advisable to file an H-1B transfer to a new position until after you have an I-485 application pending for at least 180 days based upon an approved or pending I-140.

1. Fing a premium processing for an EB-1 case where you are not sure about the merits of your EB-1 case is not advised  

A reader asks:
Considering that Trump’s coming to power is a high probability event, I am a little anxious about my identity issue and am hesitating whether to expedite the EB-1B. The point of hesitation is that my EB-1B case is extremely weak, and I heard that expediting will increase the possibility of rejection. Before, the NIW was approved by TSC. When applying for EB-1B, I changed jobs and moved to NSC territory. I consulted an outside lawyer, who said that the EB-1B case has a chance in TSC, but not in NSC. But since the company lawyer agreed to do it, I must give it a try. I submitted it in early May this year, but it was not expedited when I submitted it, and I did not argue. In early June, the case status was updated from received to being actively reviewed. According to the timeline of about half a year, I-140 will not receive a reply from USCIS following opinions: 1. How long is the current TSC EB-1B case timeline? Is it still half a year? 2. In my case, should the EB-1B case be expedited?

Arthur Lee, Esq. answers,
Per the USCIS website, Texas Service Center is adjudicating 80% of EB-1B cases within 10 months. It may be a good sign in terms of speed of your case that your case status changed to “active review” in June. My suggestion is to stay patient regarding your EB-1B case. I would advise against premium processing for an EB-1 case where you are not sure about the merits of your case. Premium processing service, for whatever reason in recent years, has been known to invite tougher scrutiny in many types of immigration cases—EB-1 included. Anecdotally, many immigration lawyers in recent years have encountered difficult RFEs and NOIDs when filing premium processing for EB-1 cases—even strong cases. Also, I note that your lawyer’s belief that your case has a shot at TSC but not at NSC is very speculative. This may or may not be true, and it is difficult to determine at any given moment which service center is more likely to have tougher adjudicating officers and which ones have more lenient officers. Finally, a Trump presidency would be generally bad for intending immigrants to the US. But EB-1 was not a focus of the previous Trump administration, and will not likely be a focus of scrutiny in an upcoming Trump term. The risks toward your EB-1B petition of filing premium processing, in my belief, far outweigh the risks of a Trump presidency.

2. In filing the PERM application, you will not need to submit your resume for Department of Labor review

A reader asks:
Recently, the company wants to apply for perm, and I need to provide a resume. I have 2 questions: 1. I worked in China for 6 years before and came to the US again. Is it necessary to provide domestic experience? 2. Will the domestic experience be checked? Because the company I used to work for went bankrupt, the company should be deregistered.

Arthur Lee, Esq. answers,
In filing the PERM application, you will not need to submit your resume for Department of Labor review. The resume is likely for the company or company lawyer to help formulate case strategy. There is no need to provide your 6 years working experience in your PERM ETA 9089 application unless that 6 years experience is relevant to your qualifications for your sponsoring company’s position. You only need to disclose your current employment, and other employment relevant to your qualifications for the PERM position. If your experience in China for 6 years was relevant, then you may want to list that experience on the PERM ETA 9089, and obtain an experience verification letter from your China employer. This letter can come from your former manager or human resources, or anybody else you worked with in a responsible position who can attest to your experience. If the company is deregistered and out of business, you can still verify this experience by having a former manager or colleague attest to your experience while explaining that the company is now out of business. You may supplement that letter with an affidavit of your own explaining that you had worked in that position with the China company, but could not get a verification on the company’s official stationery because they went out of business.

3. When the time for processing at the field office has passed, you may wish to speak to a USCIS contact center

A Reader asks:
I applied for EB-1A, and my I-485 has been under for nearly two years. I am anxious again this year, so I have to ask Emma. I don’t understand the reply, please help me interpret it. My I-485 has been transferred to the local FO for a year and a half, and it has been current and stuck in the fingerprint status.

Q: My priority date has arrived, why is it not approved?

Q: Even if your priority date has arrived, if there are not enough visas, your case will still be suspended according to regulations until a visa is available.

Q: So even if I am in the field office now, I don’t have an EB1A visa? Is this what you mean?

A: Your case will continue to be suspended until the officer provides you with a visa number.

Excuse me, why have you not had a visa for almost two years, and shouldn’t there be a lot of EB-1A quotas in the new fiscal year (these two years)? As I said recently, I found that Emma is indeed unreliable. A month later, I asked Emma where my case was. Emma said it was at NBC. I confirmed it again and she said it had always been there, and it had never changed. I thought I had finally been transferred back to NBC from FO. I confirmed it again. She said it had been at FO for a year and a half. Did it just get transferred back? Emma immediately changed her words. Sorry, I misread the document. It was still at FO. It had been a year and a half and it was still at FO.

Arthur Lee, Esq. answers,
for the month of September 2024, the final action date for the EB-1A category is current for most of the world except for natives of China and India whose I-485’s cannot be approved unless their priority dates are earlier than November 1, 2022 and February 1, 2022 respectively. I note that the EB-1A category has backlogged periodically with those two countries in the past, and so you may wish to check your priority date to see if it is now current if you are a native of one of these two. Assuming that the priority date is current, and assuming that the time for processing at the field office has passed, you may wish to speak to a USCIS contact center representative at 1-800-375-5283 to see whether you can obtain more accurate information on the progress of your case.

1. If your priority date is current, it is best to file your I-485 ASAP

A reader asks:
Because the company wants to save money or not occupy the H-1B quota, the company wants me to wait as long as possible to get the combo card. My situation is to wait for the scheduled update in September this year to submit I-485 and wait for the combo card. My H-1B expires at the end of September this year. I have two options. Option one is to suspend work until you get the combo card and then continue working. Option two is to apply for an H-1B extension in September. It is estimated that it will take more than half a year to get the combo card approved. It is estimated that the combo card will be activated again in march or April when the combo is released. If H-1B is denied, company checks will not be cashed. I also know that the best solution is to extend the H-1B immediately, but the company wants me to wait. If you think it’s best to apply for H-1B extension first, when is the deadline?

Arthur Lee Esq. answers:
Your deadline to file an H-1B extension would be the date of your H-1B expiration. For instance, if your H-1B status expires on September 30, 2024, your H-1B extension must be received by USCIS on or before September 30, 2024. So long as you properly file your H-1B extension, you will be authorized to work while your H-1B extension is pending adjudication for up to 240 days (typically an H-1B extension takes USCIS 2-4 months to adjudicate). If your company chooses not to file an H-1B extension on your behalf, your best alternative is to file your I-485 and I-765 concurrently as soon as possible. I am unclear as to why you are waiting until September to file your I-485 and I-765 application if your priority date is current. These applications are generally specific to you, and require limited employer participation. I do not understand why your employer would want you to wait as long as possible to receive an EAD too–that is an employment authorization card that would allow you to work for any employer (it is generally in your best interests to work for your sponsoring I-140 employer for a successful I-485 adjudication). As long as your priority date is current, it is best to file your I-485 and I-765 applications ASAP to have flexible work authorization as soon as possible, and to apply before visa retrogression potentially prevents you from filing your case. If your employer does not choose to extend your H-1B, you will not be authorized to work until your I-765 application is approved, but you will have authorization to remain in the US upon filing your I-485. In sum, it is in your best interests to take these actions as soon as possible: (1) file your I-485 as soon as your priority date becomes current, and I-765 if your employer seems unwilling to file your H-1B extension; (2) file your H-1B extension paperwork before your deadline in September.

2. Before filing I-485 you should maintain legal status

A reader asks:
The PD for my immigration application is early 2021. I later changed jobs and had my previous PERM and I-140, but it is now difficult to successfully advertise in the market. If the schedule is up but the PERM has not come down yet, will the PD expire after one year? I heard that I have to file my I-485 one year after PD current.

Arthur Lee Esq. answers:
You should not lose your priority date for adjustment of status purposes through an employment-based petition unless your I-140 is revoked for fraud or misrepresentation by your employer less than 180 days after I-140 approval. Unlike consular processing where you would typically need to file your green card application (DS-260) within one year of NVC notifying you of your priority date becoming current, there is no such regulation regarding I-485 filing. Therefore, you will not likely need to worry about your priority date becoming current for more than 1 year. You just need to ensure that your priority date can be legally retained, and that you will be able to maintain legal status in the US up until the time you file your I-485 application. Good luck to you on your PERM recruitment and adjudication, and the rest of your process. As soon as your PERM ETA 9089 is certified, you should be able to concurrently file a new I-140 / I-485 with a request to retain your old priority date–as long as the visa availability does not retrogress past your old priority date and you have been maintaining legal status.

3. If your I-485 case is past standard processing times, you may wish to contact USCIS

I applied for EB-1, PD is August 2022, but the current cutoff date is already November 2022. My current I-485 status is pending fingerprints taken for half a year. However, USCIS insists that my cut-off date has not been met. What should I do?

Arthur Lee, Esq. answers,
If your priority date has already been reached on “Chart A- Final Action Dates,” your case should be in line to be adjudicated by USCIS. However, you may wish to check standard processing times with respect to your adjudicating field office or service center. If your I-485 case is also past standard processing times, then you may wish to contact USCIS via eRequest or the Contact Center at 1-800-375-5283. If you had received communication from USCIS that your priority date is not yet available, you can reach out to them again and explain that their answer was wrong and ask for another update. USCIS officers do make mistakes in their responses to service requests, so the best thing to do is to continue to follow up until a decision is made, as long as your case is past standard processing times. Best of luck to you.

4. Going to school on a visitor visa bars a change of status application

My EB-1A was approved, Form B has arrived, and I will bring my child to the country in January with a B visa. We originally planned to submit the I-485 in three months, but now Form B is closed. The child has enrolled in a local public school. The school will have a holiday at the end of May and start school in August. My B visa expires at the end of June. Can the children continue to go to school smoothly here?

Arthur Lee, Esq. answers,
If your child is on a B visa, he or she is not allowed to go to school. Going to school on a visitor visa bars a change of status application if USCIS knows of it. Also note that schooling is not allowed until a change of status application is approved. Current published USCIS processing times indicate that 80% of F-1 change of status applications take approximately 4.5 months to reach for adjudication. You may wish to rethink your strategy.

5. It is best to wait until you have your H-1B approval before you leave the U.S. 

A reader asks:
My I-485 application is pending, H-1B will expire in less than a month, and the H-1B extension has been submitted but has not been approved yet. I have a Canadian visa. If I go to Canada to visit, can I get H-1B to return to the US? What are the risks?

Arthur Lee Esq. answers:
If you go to Canada, you will not likely be able to return to the US until your H-1B extension is approved. CBP cannot grant you a new time on an entry that you do not have approval for. It may allow you entry for the balance of time on your present H-1B if you attempt reentry during your present H-1B validity, but not the time afterwards which is not yet approved. In the latter scenario, it is likely that CBP will refuse you at the border and tell you to reattempt entry once you have your H-1B extension approved. Therefore, if you plan to return after H-1B expiration, it is best to wait until you have your H-1B approval before you go to Canada, unless you are truly willing to wait in Canada until your H-1B is approved before making the trip back over Stateside.

6. H-1B has not submitted I-140, the spouse cannot work with H-4.

H-4 has a NIW PD, can I work? But if I submitted an I-140 before marriage, the principal applicant does not have an H-1B, and the partner has an H-1B, but did not submit an I-140 together, in this case, can the principal applicant use the H-4 to work? If the I-140 is submitted together, will there be any difference?

Arthur Lee, Esq. answers,
From your question, my understanding is that you, the principal applicant, submitted an I-140 prior to getting married to your spouse; your spouse has H-1B status, but did not submit an I-140 petition. In this case, you would not likely be able to work on your H-4 status. An H-4 EAD is only conferred to the spouse of an H-1B principal who has an approved I-140, or who has been granted H-1B extension under sections 106(a) or (b) of the AC21. The first condition of your spouse having an approved I-140 is clearly not met. The second condition may be met if your spouse received an H-1B extension past the sixth year due to having a PERM labor certification approved for 365 days or more. If the second condition is met, then you may be able to file for an EAD through a properly filed I-765 application based upon your H-4 status. It does not make a big difference in the H-4 EAD context whether you listed your spouse as a family member in your I-140 petition. You will just need to show that you have an approved I-539 as the H-4 dependent, and give in appropriate documentation of the above described condition relating to your spouse and your marriage in your I-765 application.

1. If the consular officer or USCIS finds you improperly shared technical knowledge, it may be a ground for denial of your visa or green card. 

A reader asks:
Recently, a domestic headhunter and a friend who is starting a business contacted me and suggested that I apply for a national or provincial talent program. If approved, it will be 500,000 RMB per year, and a total of 1.5 million RMB for 3 years. I would like to ask, if applying for such a program will affect the future green card 485 change of status?

Arthur Lee, Esq. answers,
If you take up a position with a national/provincial talent program, your future green card application and your application for a visa at the consulate may face tougher scrutiny given the political climate between the US and China at this time. The US government has been cracking down on foreign talent recruitment programs, which it believes are a mechanism used by foreign countries such as China to bring outside knowledge and innovation back to their countries, including stealing trade secrets, breaking export control laws, or violating conflict-of-interest policies to do so. The FBI notes that while various countries use talent plans, China is the most prolific sponsor of these programs. Therefore, if you work at a talent program, your applications to come to the US on a visa, or adjust status to I-485 may be subject to further investigation into the questions of whether you have improperly exported technical knowledge and trade secrets to China. You will need to be prepared to answer questions about whether you have ever utilized or shared knowledge regarding sensitive US technology secrets and innovations during your time working at the talent program. If the consular officer or USCIS finds that you more likely than not have improperly shared knowledge with the talent program, that may be a ground for denial of your visa or green card application.

2. NVC may choose to wait on the fee bill until your priority date is about to become current

A reader asks:
I applied for NIW and submitted it at the beginning of this year. I applied for expedited application two months later and was approved early March. How long will it take to receive the NVC payment notice? Online status check shows that the case has been transferred to NVC.

Arthur Lee Esq. answers:
Congratulations on your NIW approval. After your I-140 is approved, your case is sent to NVC assuming that you chose consular processing as your means of applying for permanent residence. USCIS notifies NVC that your case has been approved, and instructs it to pre-process you for your permanent residence application through consular processing. Typically, NVC will first send you a welcome notice then contact you with a fee bill within 60 days of your petition approval. But if you are from a country with a long backlog, NVC may choose to wait on the fee bill until your priority date is about to become current. Therefore, if you have not received any communication from NVC, and your priority date is current or about to become current (per the “Date of Filing” chart), you may wish to follow up with NVC.

1. If I-485 is current and past processing times, you can place a service request online

A reader asks，
In September 2021, the I-485 I submitted was EB-1B and the PD has been current. At present, it has been two years since the approval, and it is still pending. The lawyer said that currently approval is usually within one year. Can I urge USCIS to take a look at the case?

Arthur Lee, Esq. answers,
Processing times for employment-based I-485 cases are different in each local field office and jurisdiction. You should ascertain which local field office or service center is adjudicating your I-485, and then look up the processing times here: https://egov.uscis.gov/processing-times/. I note that in many jurisdictions, including New York City, an employment-based I-485 filed in September 2021 would be past processing times. While there is no way to “urge” USCIS to look at your adjustment of status case, there are mechanisms to check your case.  As your case is past standard processing times, you can place a service request at https://egov.uscis.gov/e-request/Intro.do. Here, you may select “past processing times” and enter in the information on your case and inquire on its status. Although USCIS does not provide time estimates for responses on these types of requests anymore, you can likely expect a response within 30 days, hopefully of some substance. Another alternative is to call the USCIS “contact center” at 1-800-375-5283 to gather status updates on your case and inquire on what progress a USCIS “agent” sees on your case. The USCIS agent may also request that your officer look at your case (same effect as placing a service request online). It is important to keep your records of your service requests and your communications with “contact center” officers; if these requests are unsuccessful or yield unsatisfactory responses, you may do an ombudsman request, in which a DHS ombudsman staff member requests that USCIS looks into your case. Best of luck to you.

2. A request for reconsideration must come within 30 days of the denial

A reader asks,
Today I learned that PERM did not have an audit and was directly rejected. The reason was that one of the skills did not appear in the experience letter of the previous company. It’s an oversight on the part of the lawyer. Now, lawyers suggest reconsidering and re-filing together. Is there a high chance of reconsideration? It’s not that I don’t want to file again. I really don’t know if I can convince my boss to apply for me again in this situation.

Arthur Lee, Esq. answers,
I note that it is not common practice for attorneys to upload prior experience letters to ETA 9089 to the Department of Labor. Signed prior experience letters are typically reserved for the I-140 stage after the ETA 9089 is certified. Based upon your question, I assume that your facts are correct and if that is the case, your attorney prepared the relevant prior experience sections incorrectly in having requirements in your PERM job that were not met by your prior experience, education, or training. Specifically, it seems based off your description that your attorney failed to mention one of your skills in your prior experience summary that was one of the job requirements. In such a case, you may have significant trouble succeeding on a request for reconsideration as such does not allow additional evidence that was not originally filed with the ETA 9089. A request for review at BALCA also does not allow additional evidence. Therefore, unless your attorney’s description of your “skill” in your prior experience and the “skill” required in your PERM position are arguably a match and/or open for interpretation and you can meet the burden of proof in demonstrating that your adjudicator erred in his/her decision, your chances of winning a request for reconsideration appear to be low. Please note that a request for reconsideration must come within 30 days of the denial, and a review by BALCA must also come within 30 days of a denial by DOL or affirmation of the denial on reconsideration.

3. You may request a duplicate receipt on eRequest if you did not receive one

A reader asks: 
I am an EB-2 green card applicant. The application documents for the primary and secondary cards sent by UPS to the lockbox in Chicago in April showed that they had been signed for that month, but so far I have not received the receipt, and the check has not been cashed. I want to ask, is this normal? How long after delivery should I receive the receipt?

Arthur Lee Esq. answers:
Typically after a month, the check(s) will have been cashed and you would have received a filing receipt. You may wish to check whether your filing was sent to the correct address. Please note that filing addresses are different due to a myriad of factors including whether you are filing a standalone I-485; whether you have other applications such as I-765 and I-131 filed concurrently with it; I-485 category, etc. If you have filed your application to the correct address, but have not yet received a receipt, you may wish to call the USCIS contact center and try to locate your file by informing the officer of your “A” number if you have one. If you get a receipt number, that solves the issue, and you may request a duplicate receipt on eRequest if you did not receive one. If USCIS does not have a receipt for your case (which is likely because your check has not been cashed), you can email lockbox support at lockboxsupport@uscis.dhs.gov. In this email, you should include your name, “A” number if you have one, address, telephone number, and how you paid your filing fee. Please explain in your letter that you have sent your case to this lockbox, and it has been delivered and signed for, but that your case has not been receipted yet nor checks cashed. Hopefully through assistance by Lockbox Support USCIS will locate your case. If all else fails, you can refile your case assuming you have kept copies of all evidence–just issue a new payment. If your payment with your initial submission is checked, then contact the bank and cancel your second payment. Best of luck to you.

4.  You can use an approved EB-2’s priority date to apply for another employment based petition

A reader asks,
Since EB-1 also has a waiting period now, if I apply for EB-1 while I already have an EB-2 PD, will my PD be re-established or will the PD of the newly applied EB-1 be the same as the original EB-2 PD? If it is not the original EB-2 PD, will the application be invalidated?

Alan Lee Esq. answers,
I will assume that the EB-2 petition has already been approved. If so, and there are no applicable grounds for revocation, you can use the priority date for purposes of applying for another employment based petition, including EB-1. As your EB-1 case is now scheduled, I assume that you have already filed form I-485. Generally to accord an earlier priority date, you would request that the earlier priority date be assigned when you file the new I-140 petition. If you did not, hopefully the officer at the interview will allow for the transfer of priority date. If not and the EB-1 petition was filed without a current priority date, there would be a problem. If filed with a current EB-1 priority date and the date has retrogressed, the I-485 filing would still be valid although you might have to wait for the EB-1 date to again become current again before the officer can make a final adjudication on your case.

5. A NIW petition may affect the renewal of F-1 to return to the United States

A reader asks:
I am in my first year of postdoc OPT, studying for a PhD in the United States, and my current student visa F-1 has expired. I plan to apply for NIW and will it affect my return to the United States after returning to my country? Because F-1 is a non-immigrant visa and applying for NIW has immigration intent, will it affect the renewal of F-1 to return to the United States?

Alan Lee Esq. answers,
As you note, a F-1 visa is one requiring nonimmigrant intent. A NIW petition on form I-140 is an immigrant visa petition, a contrary concept. You may have problems renewing the F-1 visa since one of the questions on the DS-160 application form for a nonimmigrant visa is “Has anyone ever filed an immigrant petition on your behalf with the US Citizenship and Immigration Services (USCIS)? If YES, explain.” It may increase your chances of visa renewal to apply for the NIW petition after returning to the US.

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.