Author: Arthur Lee

Q&A’s published on the World Journal Weekly on September 24, 2023: 1. I-140 has just been approved and I want to change jobs… 2. Apply for EB-1A on your own, not necessary need an employment letter

1. I-140 has just been approved and I want to change jobs…

A reader asks: 
At present, my H-1B’s three years are almost used up and I am about to renew it. For the sake of legal status, I have been working in a small company with low wages. I consulted about job-hopping before, but they all suggested that I should try to change jobs after my I-140 was approved. At present, my I-140 has just been approved less than 180 days. I plan to start looking for a job now. My questions are:

1. At present, the processing time for PERM is getting longer and longer.  If I switch to a new company, how long will it take to re-apply for PERM+I-140?
2. Are there any differences in the relevant policies for green cards of construction companies?
3. I requested to put the phrase of applying green card on day 1 in my contract, therefore, I believe only small companies would hire me, correct?  At present, I am struggling whether to ask my family for money for another four years or take the risk of possible problems/risks to do I-140 again? I am already exhausted from getting this I-140 approved.

Arthur Lee Esq. answers:

  1. Firstly, you should make sure not to leave your current position until your I-140 has been approved for more than 180 days if fearful that your employer will seek to revoke it. If you are from a country such as China or India which is backlogged on the visa bulletin, then a withdrawal of an approved I-140 petition by your current employer may still help you in giving you an earlier priority date (i.e. when your PERM was filed or your I-140 was filed if there was no PERM labor certification). If your I-140 is revoked due to fraud or willful misrepresentation, revocation of labor certification, or invalidation of labor certification, then you do not retain an old priority date. Again, this only truly helps you if you were born in a country with significant backlog, which I would assume that you are since you have not applied for a green card yet. A timely revocation within 180 days by an employer would disadvantage you when you need to be on H-1B status for over the 6 year maximin time limit.
    In the case that you found a new job, you would need to redo the labor certification process—meaning filing a prevailing wage determination, testing the labor market, and filing ETA 9089, then filing another I-140. The good news is you would likely be eligible to keep your old priority date. However, this process would likely take another 2 years to get another approved form I-140 (with I-140 premium processing) with your new position. Then, you may file an I-485 application once your retained priority date becomes current. Typically, an adjudication on an employment based I-485 will take approximately 1 year. 
    I note that the labor certification steps may be skipped if you have an approved I-140 (or pending I-140 that is ultimately approved in the EB-1, 2, or 3 categories), and you have a properly filed I-485 application pending with USCIS for 180+ days. In that case, you may “port” your I-140 petition to a job in the same or similar job classification. But in your case, porting is not available as you have not filed an I-485 yet.
  2. In USCIS’ eyes, there are not. Your job position would need to make sense in terms of the company’s needs, the company would need to show the ability to pay you the stated fulltime salary as promised in the labor certification application, and you would need to be a full-time salaried W-2 employee upon receiving the green card.
    However, due to the nature of many construction jobs, there are some things that you and your potential employer need to look out for. Some jobs require licensure by the state and local government. For instance, if you are working as an engineer (mechanical, civil, etc.), you may need an engineering license unless you plan to work under the supervision of a licensed engineer; architects, electricians, and general contracted construction workers generally need licenses too in many jurisdictions. Therefore your employer must review the relevant licensure requirements in your jurisdiction to ensure that you are qualified for your proffered green card position. Also, PERM recruitment for construction-related positions may involve notifying a labor union that a company is recruiting a foreign worker in a position. As such, the company and employee should determine whether a labor union covers the green card position and must post a notice of intent to employ a foreign worker with that union. Also, a construction-related position may require the foreign worker to travel to construction sites. In such a case, a notice of filing should be posted at the sites where the employee will perform work as well as internally using all in-house media according to normal internal procedures. Should travel be anticipated for areas outside the metropolitan statistical area of the primary worksite, additional recruitment may be required.
  3. All companies have their own policies—some are willing to sponsor, some are not. Larger size companies may not be willing to include the language that you wish in their employment contracts.  However, I do note that it may be more difficult for a small company to sponsor you as it would need to show financial viability to pay you a full-time DOL-approved salary upon your receipt of a green card. Also its human resources department (if it has one) may not have the knowledge or experience in immigration matters as a larger company.
2. Apply for EB-1A on your own, not necessary need an employment letter

A reader asks:

I am working in the United States, and I am looking for someone to help me apply EB-1A. The person must write an employment letter to prove my work, and I will not change the field and need to ask the company to sign. Is this necessary? Is it enough to prove my job by paystubs? Because I will not change my field, I could sign it myself correct? As I feel it has nothing to do with the company, I don’t want the company to know that I am filing the petition myself. Is this idea feasible?

Arthur Lee Esq. answers:
As a condition of eligibility for EB-1A status, you must be able to show that you will be working in the same field in the United States in which you have extraordinary ability and that you will provide benefit to the United States. The adjudicating officer will decide whether you have proven these points based upon the totality of the evidence. Since you are self-petitioning, there is no requirement for a signed letter from an employer. However, having such a letter would be good evidence to show that you will continue to work in your field of expertise and provide a benefit. If you would prefer not to get such a signed letter, you can provide other evidence showing that you will continue to be in your field of expertise after your EB-1A is approved including but not limited to: (1) a showing that you have recently been working in your field of expertise such as paystubs, current job letter, and letters from others who know your work (not necessarily from management) and can attest that you are continuing to work in your field of expertise; (2) any recent contributions you have made to your field of expertise showing a continued interest in the pursuit of the field; and/or (3) any other evidence you can think of that would show that you are committed to your field.

Q&A’s published on the World Journal Weekly on September 10, 2023: 1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US 2. Should I do an appeal or file a motion after my EB-1A was denied? 3. The duration of an H-1B visa depends on several factors

1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US

A reader asks: 
I graduated in 2011 in China with a master’s degree, and I worked as a computer professional teacher in a university for the past 12 years. Recently, because of my children’s education, I have the idea of immigrating. The first thing I considered was to New Zealand or Canada. Basically, people must go there before they can get their status. I don’t want to resign now because my children are still little. Now a middleman recommended me to do NIW, and said that I could apply while in China, and I am not in a hurry to go overseas anyway. The current situation is that I have 7 papers, patents and software works which were of average quality, and served as referees for some national competitions. I feel that my qualifications are quite average.  However, I talked to several China’s middleman, they all thought my qualifications are sufficient, but they did not mention any of the risk. I am very confused now, please help.

Arthur Lee, Esq. answers:
You might be eligible for an EB-2 NIW. The three criteria for demonstrating your eligibility for NIW are: (1) that your proposed endeavor has both substantial merit and national importance; (2) that you are well-positioned to advance this endeavor; and (3) that on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

That said, it is unclear what your proposed endeavor would be, and how it would be beneficial to the U.S. government. Assuming that your proposed endeavor meets the criteria, the second question needs to be addressed whether you are well-posotioned. Your Master’s degree (assuming this is in a field that is computer related), having 7 papers/patents/software, and being a computer science professor at a university would be considered. It would also be a good idea to have experts in your field write letters of recommendations describing your accomplishments in the field and how you are well-positioned to advance this field with your work in the United States to solidify your evidence on being “well-positioned.” NIW is on a case by case basis, so an adjudicating officer would need to find that on balance, your proposed endeavor has substantial merit and national importance—as such, your endeavor with computers must be worthwhile to the U.S. government. In your NIW filing, you must show that your endeavor is worthwhile in that it will help advance human knowledge, create jobs, advance the economy, or a field in the United States that the current administration values. The Biden administration through its policy memorandum encourages granting NIW where a foreign worker will advance the STEM (science technology engineering mathematics) fields. Some examples of endeavors that have been found worthwhile in published decisions include being a software developer of stock option valuation, and a software developer with a PhD in music technology applying computer technology to music-related areas for the interests of the U.S. 

Also, an officer must decide whether on balance, it would be beneficial to the US to waive the job offer and labor certification requirements. This inquiry looks into factors such as whether you will be self-employed in a manner that does not adversely affect U.S. workers; will own a business that provides jobs for U.S. workers; your work will otherwise lead to job creation; your endeavor has potential to generate considerable revenue consistent with the economy; your endeavor will benefit the U.S. even if other U.S. workers are available; national interests in your contributions are sufficiently urgent (such as U.S. competitiveness in STEM fields); or if labor certification is impractical for your position. You may wish to consult with a qualified immigration attorney who will further advise you on your qualifications as an NIW applicant, and the risks associated with filing such an application.

2. Should I do an appeal or file a motion after my EB-1A was denied?

A reader asks: 
I am in China. I submitted the EB-1A application in June last year and received a denial letter in April this year. I submitted a total of four categories and only approved two. What should I do next? Should I do an appeal or file a motion? What is the difference between these two?

Arthur Lee, Esq. answers:
The difference between an appeal and a motion is that a motion will be filed to the same authority that adjudicated your case previously. In your case, it would be the same USCIS service center that handled your EB-1A application. There are two types of motions: (1) motion to reopen would be a motion to the service center to consider new facts that were not present at the time of your original filing; (2) a motion to reconsider is a request to review its application of the law in its previous decision. Meanwhile, an administrative appeal asks a different branch of USCIS (in this case the Administrative Appeals Office (AAO) ) to review the field office’s decision. Just like a motion, an appeal must typically be filed within 30 calendar days of the issuance of denial. Unlike a motion, an appeal requests de novo review which means that the AAO looks at the record anew including all facts and applications of law and it may address new issues that were not raised or resolved in the lower agency’s decision. USCIS aims to adjudicate its motions within 90 days, and the AAO aims for 180 days. Whether to file an appeal or motion is up to you.  Many attorneys opt for appeal.  However, if you choose to file a motion note that you can still appeal to the AAO if your motion is denied or dismissed.

3. The duration of an H-1B visa depends on several factors

A reader asks: 
I worked in the United States for more than three years before, and I came back to China this year. In early May, I applied for the first H-1B visa at the Shenyang Consulate. During the visa interview, I told the visa officer that I had been working at Qualcomm, and my work was in the sensitive direction of chip verification. I thought I would be background checked, to my surprise, I passed the interview and my passport was submitted.  However, after getting the passport back, I found that the H-1B is only valid for 4 months. My I-797 is valid until July 2025. My passport doesn’t expire until 2025. I don’t understand why the H-1B is only given 4 months, shouldn’t it be a one-year H-1B?

Arthur Lee Esq. answers,
The duration of an H-1B visa depends on several factors including the specific circumstances of your case, the discretion of the consular officer, and any supporting documentation provided. Since you have a valid passport for 2 years, as well as valid H-1B status for 2 years, there is nothing on the reciprocity schedule for H-1Bs with China to show why you would be given such a short time. On H-1B reciprocity with China, you should be given 12 months or the period of validity of your H-1B petition, whichever is less. Since your passport and H-1B status are valid until 2025, it is surprising that you did not get a 1 year visa. It seems that reason for the shorter duration on your H-1B visa was the consular officer’s discretion, if not a mistake. Consular officers have the authority to determine the validity period of a visa based upon their assessment of the individual’s circumstances such as duration of job offer, petitioner’s compliance history, and other relevant information. While this is just speculation, perhaps the officer chose to give you an easier interview, but limit your ability to go in and out of the country without further questioning due to your work in a sensitive area in technology.

Q&A’s published on the World Journal Weekly on August 27, 2023: Arthur Lee, Esq. Article: Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications. Arthur Lee, Esq. Q&As: 1. The online query of PERM labor certification database is inaccurate 2. A showing of job applications in the United States is not normally required for an EB-1A petition.

Arthur Lee, Esq. Article:
Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications.

While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.

In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.

While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.

Arthur Lee, Esq. Q&As:
1. The online query of PERM labor certification database is inaccurate

A reader asks:
I was laid off by the company. I heard that the company cannot file PERM application within half a year after layoff. Where can I check the current PERM status of each company?

Arthur Lee Esq. answers:
A company can file a PERM application within 6 months of a layoff or reduction in force. However, there are additional caveats when a company chooses to do so. If the company has had a layoff in the area of intended employment within 6 months of filing a PERM application, and the layoff involves the occupation for which the certification is sought, or a related occupation, then the company must disclose this on the application to Dept. of Labor. In addition, if such a layoff occurred in this 6-month period, the company must notify and consider previously laid off U.S. workers in the related roles for the PERM position for which certification is sought. A notification to a previously laid off worker in the same or related occupation must provide a full description of the specific job opportunities, include clear instructions, and invite the worker to apply for the position. Unfortunately, we do not believe that there is an online forum effectively showing which companies have filed PERM applications in real time. Although the filing of PERM is public record accessible through official FOIA (freedom of information act) requests, there does not seem to be an Internet website accurately showing in real-time which companies have filed PERM applications on what dates. I note that there is one website (H1B grader) which has a green card PERM labor certification database, but I have tried it out and it is inaccurate.

2. A showing of job applications in the United States is not normally required for an EB-1A petition.

A reader asks:
When the lawyer was preparing the EB-1A application, he asked to submit some job application evidence, which is probably my application record for finding a job in the United States. I’m currently working outside the  US, and it’s not realistic to apply for jobs now. Since getting a green card is still far away, the law firm means that even a screenshot of the US job application record will be helpful. If there is no evidence of applying for a US job at all, the risk of RFE will increase in the future. I would like to ask, is this evidence really useful?

Arthur Lee, Esq. answers:
While I do not know the specifics of your EB-1A case, a showing of job applications in the United States is not normally required for an EB-1A petition. That being said, an EB-1A petition should include evidence showing that you will be continuing to work in your area of expertise and that your immigration will benefit the country. If you are currently working outside the United States in your area of expertise, that can serve as good evidence that you will continue to work in this area of expertise. If you have a long history of employment in the area of expertise, and you have maintained excellence in this area to this date, that may serve as good evidence as well. USCIS evaluates whether you will continue to work in your area of expertise through a look at the totality of your circumstances. For instance, if you have been an extraordinary musician, but have not been maintaining your practice of music and have been engaged in other fields—like say, accounting, in your recent history—USCIS might not be convinced that you are coming to the United States to contribute your musical talents, rather that you are coming here to make a living in a different field. If your lawyer is asking for evidence that you have applied to certain US jobs, it is likely that he/she believes that there is not enough evidence that you are able to engage in your field of extraordinary ability when you come to the US. If that is the case, then applying to US jobs in your field of expertise may be some useful evidence. Other, perhaps useful evidence would be your current work in your field of expertise regardless of location and an overall showing that you maintain a passion in that field that you will continue indefinitely. 

Arthur Lee, Esq. Q&As published on the World Journal Weekly on August 13, 2023 1. Applying for NIW must show you can advance the national interest 2. The filing of an I-140 petition may impact F-1 visa approval 3. USCIS may apply previously captured fingerprints to many new cases

1. Applying for NIW must show you can advance the national interest

A reader asks:
I am in China, and I consulted an American lawyer by email, and the reply was I met the requirements of NIW and can sign a contract.  However, I was told that I must work in the relevant field for at least half a year after getting the green card, otherwise the green card could be revoked. It is difficult for me to do that because my major is education and I have been in China, so I apply for NIW which an employer is not required. If I really must find a job in the same field after entering the US, I will have to reconsider whether to apply for NIW. What should I do?

Arthur Lee answers:
Assuming that you get your EB-2 NIW is approved and you go for your visa interview, you should demonstrate how you plan to utilize your knowledge and skills to advance the national interest per your EB-2 application, for which an employer was not required. You may independently perform research, for instance, if your EB-2 NIW was research-related, or try your best to find an employer in the field of endeavor. While every NIW case is different, your ability to advance the national interest through your work as well as your intent to do so must be made clear to a consular officer.

There is a possibility that if you do not enter the position or endeavor promised on your EB-2 NIW application, your green card will be revoked. One way in which revocation would occur is in the naturalization (citizenship) process. At that stage, you would be expected to produce 5 years of tax returns and employment information. Also, an officer may ask you how you petitioned for your green card, and what job you performed upon entering the United States. While many adjudicating officers may not thoroughly ask about this, the few that do could find that you obtained your green card on false pretenses and begin proceedings to revoke it. I also note that in such a case, USCIS would issue a notice to appear (NTA) to initiate removal proceedings, and you would remain a permanent resident until the immigration judge issues a final decision. 

If you are not confident in your ability to advance the national interest as proposed in your EB-2 NIW application (whether through self-employment or through employment with another company), then you may decide to seek a different route to getting a green card, such as a PERM labor certification.

2. The filing of an I-140 petition may impact F-1 visa approval

A reader asks:
I am currently working in China. Last year, I filed I-140 immigrant petition, the priority date is already current in the second half of last year. Due to my personal reasons, I want to apply for a PhD to return to the United States for further study. Since F-1 is a non-immigrant visa, and the time for a doctorate is relatively long, will the approval of the application have a relatively serious impact on the application for F-1?

Arthur Lee answers:
The filing of an I-140 petition may impact F-1 visa approval, which requires non-immigrant intent. That being said, you may be able to secure an F-1 visa if you bring clear evidence to the consular interview that you intend to return to China after your studies. You should bring evidence that you have ties to China that you do not intend to abandon including but not limited to property ownership or unexpired residential lease; family ties such as spouse, children, or parents; investments and financial assets in China; and demonstration of social relationships and involvement in your local community. You may also explain to the consular officer that your desire to take a nonimmigrant visa despite your possession of an approved I-140 with a current priority date with which you are eligible to enter the US with a green card is evidence itself of your intent to return to China. 

If you desire to maximize your likelihood of obtaining an F-1 visa, you may request a withdrawal of your I-140 petition. Of course, this would likely eliminate your chances of coming into the United States as a lawful permanent resident for the foreseeable future.

Alternately, you can continue your green card case and enter the U.S. with an immigrant visa assuming that you pass the consular interview. Once you have a green card, you are eligible to attend school for PhD study without getting an F-1 visa. By the same token, you must engage in employment as promised on your I-140 petition for a reasonable time period. During your initial months in the United States, you may attend school as long as you can fulfill your job responsibilities on a full-time basis as stated in your I-140.

3. USCIS may apply previously captured fingerprints to many new cases

I submitted my I-485 application at the beginning of November last year and it was sent to SRC, but I haven’t received the fingerprint notice yet. It has been a long time, and I checked the case status extensively. The cases with same middle two numbers had rarely been fingerprinted, but the latter numbers’ cases had all been fingerprinted. What’s happening here?

Arthur Lee answers:
As a rule, all I-485 applicants between the ages of 14 to 79 are required to be fingerprinted for the purpose of conducting security clearance and criminal background checks. To increase efficiency, USCIS has in the past few years applied previously captured fingerprints to many new cases, but if USCIS is applying your old fingerprints to your I-485 application, it would have sent you a notice stating so. If you have not received a fingerprinting notice yet, you may file an e-request through the USCIS website to inquire about why you have not received your biometrics appointment yet.

Article: Requests for Further Evidence for Submitted “Missing” Documents Relating To Current Guidance for Paper Filed Applications by Arthur Lee, Esq.

As published in the Immigration Daily on August 7, 2023

While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.

In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.

While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.

Arthur Lee, Esq. Q&As published on the World Journal Weekly on August 6, 2023 1. Laid off H-1B employee, where the employer did not withdraw the approved H-1B, may be able to have a successful H-1B transfer 2. When the H-1B was not approved, the H-1B lottery spot could not be preserved

1. Laid off H-1B employee, where the employer did not withdraw the approved H-1B, may be able to have a successful H-1B transfer

A reader asks:
This year is my last year of OPT, I finally won the H-1B lottery, but was laid off. My question is if I find a new job now, is there any way I can transfer this H-1B? I understand that the best H1B situation is after 10/01, I need to take two paychecks before leaving, but now I was laid off. What to do?

Arthur Lee answers:
Technically, since a cap H-1B petition is only valid starting on 10/01, you are not in valid H-1B status yet. By rule, you are not eligible for an H-1B transfer. This is USCIS’ official position. However, we have heard of a successful H-1B transfer where the party did it before his 60 day grace period was up, and his employer who laid him off did not withdraw the H-1B approval prior to 10/01. Other than that, your best options are probably to return to school for another year of study, or find another nonimmigrant employment pathway with another company willing and able to hire you such as but not limited to O-1, L-1, or E-1/E-2/E-3 if you qualify.

2. When the H-1B was not approved, the H-1B lottery spot could not be preserved 

A reader asks:
In 2016, I won the H-1B lottery but was requested RFE for additional materials. Later, at the end of June, the company suddenly terminated my work contract and cancelled my H-1B application. At the beginning of July, I returned to China immediately.  Now I have just returned to the United States after the epidemic. Can my H-1B be saved? Does it mean that I don’t need to draw the lottery again but only find a company that is willing to sponsor me? 

Arthur Lee answers:
Unfortunately, as your H-1B was not approved, you have never been in H-1B status. As such, your H-1B lottery spot has not been preserved. You cannot transfer an H-1B status which was not initially approved. Therefore, you will be subject to the lottery unless you apply for an organization that is cap exempt such as a higher educational institution, nonprofit organization affiliated with an institute of higher education, nonprofit research organization, or government research organization.

Article: TRANSIT POLICY AT BORDER A HEAD SPINNER; LAST DAYS TO START A LABOR CERTIFICATION CASE.

As published in the Immigration Daily on March 21, 2023

 Transit Policy at Border A Head Spinner.

In a bind at the Southwest border because of exploding numbers of migrants, the Biden Administration put forth a two-year parole program for 30,000 per month for the four countries of Venezuela, Nicaragua, Haiti, and Cuba in January 2023, which reduced the number of migrant crossings by 97% in that month. In February, the Administration announced its plan to end the embattled pandemic related bar of Title 42 on May 11, 2023, under which the government has been expelling great numbers of migrants without allowing them the opportunity to apply for asylum. Based upon the Administration’s plan, the Supreme Court de-scheduled oral arguments in February in a suit challenging the use of Title 42.

In its place, the Administration published for comment a temporary transit bar rule effective on May 11, 2023, the ending date of Title 42, to continue discouraging migrants from illegally crossing the US Southwest border. The carrot continues to be the two-year parole program for proper entries, and the stick the inability in most cases to apply for asylum if crossing the border unlawfully unless the migrant made an asylum application in a country that he or she transited before arriving at the US border. Specifically, this proposed rule will establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; or presented themselves at a port of entry at a pre-scheduled time or demonstrated that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application.

This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen’s family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. The presumption also would be rebutted in other exceptionally compelling circumstances, as adjudicators may determine. Unaccompanied children would be excepted from this presumption.

The rebuttable presumption would be a “condition” on asylum eligibility that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for withholding of removal and protection under the Convention Against Torture (“CAT”).

Why is this a head spinner?

The first is opposition to the carrot. While 360,000 annually in a two-year parole program is not ungenerous, it should be remembered that Poland is hosting over 2 million Ukrainians and Colombia 2.5 million Venezuelans. Yet without any other plan, 20 states filed suit on January 24, 2023, saying that the expanded use of parole authority is unlawful.

Further head spinning is the direct contrast between the transit ban here and the one imposed under the US-Canada Safe Third Country Agreement in which arrival at a formal crossing point bars the migrant from making a claim for asylum in either country, and the migrant must in effect sneak into either country from the other to be eligible for asylum. Exceptions exist. An article in the New York Times on February 9, “Texas sent busloads of migrants to New York. Now the city is paying for tickets to Canada”, outlined the City’s handing out free tickets at the Port Authority bus terminal to Plattsburgh upstate near the border, normally a $75 bus ride of about seven hours. Once there, vans and cars charging anywhere from $50 per person to even $150 take them to Roxham Road, an informal crossing into Québec, where Canadian police officers immediately place them under arrest, direct them to a barn, and process them to be sent to shelters. The attraction of Canada is that once people make a refugee claim at the border, they immediately receive health coverage, social assistance and work permits within 3 to 4 months.

Where do we go from here? No one knows whether the carrot and stick approach will continue to work, or whether lawsuits against the transit ban or parole program will upend the plan.

It should be noted that the Biden Administration is also contemplating the revival of family detention of migrant families crossing illegally into the US to help prevent the anticipated surge beginning May 11. The policy as first put in place by the Trump administration caused family separations and soul-searching in the nation. Officials said that contrary to the Trump implementation, the Biden Administration would adhere to the terms of the Flores court settlement (Flores v. Reno, CV 85-4544 (USDC CD CA 1/28/97)) which only allows children to be detained for 20 days. Stay tuned.

Last Days to Start a Labor Certification Case.

Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.

USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.

In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.

Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.

The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.

 

Recommendations to Improve H-1B Lottery System by Arthur Lee, Esq.

As published in the Immigration Daily on April 14, 2022

The H-1B lottery selection system has proven to be a time and cost saver for employers trying to hire H-1B cap workers during a fiscal year, but it has room for significant improvement. On the numbers, in FY2022, USCIS received 308,613 H-1B registrations and initially selected 87,500 registrations in its first round of selections in March. The 87,500 was projected to be sufficient to meet the H-1B numerical allocations. Then, on July 29, 2021, USCIS announced a second selection of 27,717 resulting in a total of 115,217 selected registrants. This suggests that of the 87,500 initially selected, employers did not submit petitions or the petitions had irretrievable problems for 27,717 of the selected. It is difficult to imagine a vast quantity of defective petitions, so the bulk of the number would have been non-submitted petitions. This represents a rate of 31.7% of all selected registrants. Then on November 19, 2021, USCIS conducted a selection of 16,753 registrants, suggesting that 60.4% of registrants selected in the second round did not respond or petitions had irretrievable problems. These percentages might not factor every consideration that USCIS has taken or will take in conducting further lotteries, but are nonetheless illustrative of the non-response/problematic petition trends in the H-1B selection process.

While the current selection system makes much more sense than the past one of instructing petitioners to file full petitions for their prospective beneficiaries prior to selection, there are some frustrating flaws to the new system. Since it is much cheaper and less time-consuming to enter a potential H-1B employee into the lottery than submitting a full petition on his/her behalf, it stands to reason that there are much higher numbers of potential H-1B registrants to select from under the new system. In FY2022, USCIS received 308,613 registrants, as opposed to the 201,011 petitions to select from in FY2020—the year before USCIS switched to the H-1B lottery registration system—representing a 53.5% increase in the selection pool due in large part to what the author believes is the new system. After selections are made, non-response/problematic case rates are understandably high due to the relatively low level of investment employers made in registering their potential H-1Bs—all they needed to do was enter basic information into an online form and pay $10 per potential worker. Those who are not selected in the initial lottery must wait until a potential second or third lottery (July and November in FY2022). In FY2022, 72% of registrants were not selected in the initial lottery. Therefore, while approximately 31.7% of the initially selected registrants did not file or filed problematic petitions, the 72% that were not selected had to weigh their options as they would not find out if there would be a later round of selections until such happened in July. Many of the 72% were not in the fortunate situation where they could wait to be selected as some had expiring statuses and were compelled to take other legal measures to stay lawful, become illegal, or go abroad. A non-selection in the first round of H-1B lotteries often also has compelled employers to change their minds about sponsoring a beneficiary if he/she was selected in a future round, especially if expiring statuses or visas prevent H-1B candidates from working with their employers until the future selections are made. As such, by the 2nd selection round in July 2022, many registrants had already moved on, as evidenced by the approximate 60.4% non-response/problematic H-1B rate. This lack of response compelled USCIS to conduct a third lottery in November 2021 for 16,753 registrants—for a process that should in theory have allowed for adjudications of all H-1B cap workers for work beginning on October 1 of the same year.

Clearly, at the heart of the problem are the following: (1) the barrier for entry is too low for employers such that the bulk of approximately 31.7% of those selected choose not to file H-1B petitions; (2) registrants not selected in the first lottery round do not know whether they will be selected in a later round (or if there will be another round); (3) plans very often change for those who are not selected in the first round, especially if they would have to wait until July or later to see if they are later selected—a selection in July or November is not equal to a selection in March. While DHS notes that there may be monetary fines and criminal penalties under 18 USC 1001(a)(3) for employers who engage in a pattern and practice of submitting registrations for which they do not file petitions, the numbers show these penalties do not work as an effective deterrent for registering and failing to file.

Is there a solution? The author believes that fortunately, the H-1B lottery system can be significantly improved by implementing one or more of the following steps:

  1. Select more registrants on the initial lottery. In FY2022, USCIS selected 87,500 in the initial H-1B lottery. Even if all 87,500 properly filed H-1B petitions, it is unlikely that USCIS would have allocated the mandated 85,000 cap H-1B visas based upon that selection alone. Even with the post-Trump era H-1B denial rate of 4%, the expected number of H-1B approvals would have been 84,000 assuming that all 87,500 successful registrants submitted petitions. Therefore, in order to avoid having to conduct a second or third lottery where interest by a large percentage of the pool has waned, USCIS should allow more room for error. It is inevitable that a significant percentage of those initially chosen will not submit petitions or will submit problematic petitions. Looking at the above statistics, a number incorporating the first plus second rounds (115,217) or somewhere in that range would likely be a good number of registrants to select in the first round. Did USCIS do something like this in March 2022? Hopefully, lessons were learned from last year.

  2. Increase the H-1B registration fee. The $10 nominal rate is a big part of the problem. Employers submitting $10 per reservation simply do not have enough skin in the game and can decide not to file petitions without much consequence unless DHS finds that they are engaging in a pattern and practice of submitting fraudulent registrations. A payment of $100 per registration would be more appropriate and deter employers from submitting registrations unless they are serious about filing H-1B petitions. That is certainly cheaper than employers filing whole petitions before the advent of the registration system and would help with USCIS’ poor financial status. To soften the blow of the larger fee, USCIS can implement a system whereby it deducts the $100 from the I-129 filing fee for successful H-1B cap registrants, and/or returns a portion of the registration fee for unsuccessful registrants.

  3. Implement an “opt out” button on the registrants’ myUSCIS portal. Petitioners should be given the choice to opt out of their registrations if they choose not to move forward. The infrastructure to implement a button appears to be already mostly in place in the myUSCIS portal. A button to opt out can be programmed onto the myUSCIS page for H-1B registrants so that they can opt out at any time. A perfect place to implement a “withdraw registration” button is under the “view notice” button on each row for selected beneficiaries. A “withdraw registration” button should bring the H-1B registrant to a page listing all ramifications of withdrawing a registration and confirming whether the petitioner really wants to withdraw. Upon implementing this button, USCIS should run selections at the end of each month to make up for any shortfall. This solution should not come at a significant cost to USCIS, as much of it can be automated, and it would help USCIS reach its H-1B quota earlier by providing more selections to those who are truly interested in petitioning earlier, and while they are still interested in filing H-1B petitions. Implementing this solution would also greatly benefit H-1B employers and prospective employees as truly interested H-1B petitioners would have greater likelihood of being able to file an H-1B petition, and employers and prospective H-1B employees would have more clarity earlier in H-1B season as to whether they have been selected or may be selected in a more amenable timeframe.

The implementation of the above recommendations should in the author’s opinion improve the H-1B registration system.

Article “EAD Processing Times for Adjustment of Status Applicants Must Be Drastically Improved” by Arthur Lee, Esq.

As published in the Immigration Daily on August 23, 2021

USCIS should prioritize improving its efficiency in adjudicating initial I-765 employment authorization document applications for all groups, but in particular, for those qualifying through adjustment of status (c)(9). Prior to 2016, EADs were required to be issued within 90 days of filing the I-765 form. However, USCIS amended its regulations to remove the 90 day requirement after facing a class action lawsuit for failing to comply with its deadline. Thereafter, the processing times for (c)(9) EADs grew incrementally—3-5 months turned into approximately 5-7 months in 2020. As of the date of this article, the processing times for (c)(9) EADs are 8-10 months at the Texas Service Center, and 8-9.5 months at the National Benefits Center.

I note that EAD processing time issues are not confined to just the adjustment of status (c)(9) category. They are delayed across the board—asylum applicants can expect to wait up to 13 months, H-4 spouses 11.5-14.5 months, DACA applicants 6.5 to 10.5 months, etc. EAD processing times are long and arbitrary for almost all categories at this point. However, the focus of this article is on adjustment of status EADs.

The abovementioned (c)(9) EAD processing delays have left many adjustment of status applicants in unjustifiably tough circumstances. This 8-10 month wait in eligibility to take employment can cause severe financial hardship and career harm for those who do not have an underlying nonimmigrant status providing work authorization. USCIS may expedite EAD applications in limited circumstances for individuals who can prove one or more of the following criteria: (1) severe financial loss to the company or applicant will occur; (2) emergency and urgent humanitarian reasons; (3) clear USCIS error; (4) nonprofit organization whose request is in furtherance of cultural and social interests of the US; or (5) US government interests. In practice, however, these criteria are high standards to clear—for instance, it is not typically enough for USCIS to approve an expedite where an applicant states that he/she will lose a job or be set back financially. As such, expedite requests are most often unsuccessful. For typical cases not meeting expedite criteria, those with dual intent nonimmigrant visas such as H-1B and L-1 that are close to expiration at the time of I-485 / I-765 concurrent filing have a difficult choice to face. They may either wait for their EAD to arrive which may put them out of work for months causing career and business interruption as well as financial hardship to themselves and their families, or extend their employment nonimmigrant visas costing potentially thousands of dollars in application and attorney fees. As an example, one of my clients filed a concurrent I-485 / I-765 application 6 months prior to H-1B expiration and reasonably expected that the EAD should be adjudicated prior to H-1B expiration or at least very soon after. This client decided not to file an H-1B extension expecting that the EAD would soon be granted. This EAD application has now been pending for over 9 months, and the client has been out of work for the past 3 months and does not know when to expect to return to work—causing financial harm to the client’s family as well as the employer as the client’s role is essential to the company. The client also submitted an expedite request on grounds of severe financial loss to the client and the employer, which was summarily rejected.

As such, many adjustment of status applicants are facing a major problem in EAD processing times causing financial and career hardship to themselves and their families, as well as hardship to their employers. Standard or even serious levels of hardship do not meet the criteria for expedite. In my client’s rejection, USCIS conceded that the financial hardship appeared serious, but denied the expedite stating that my client did not “provide evidence of an extreme emergent need.” Therefore, proving severe financial hardship appears in practice to be a very high bar. It is understood that EAD delays are due to USCIS staffing shortages and the need to perform discretionary analysis as EADs are a USCIS discretionary benefit. However, adjudications on discretion in this context should not require extensive time and resources. Adjustment of status applicants will mostly remain in the United States during the pendency of their applications, so what difference in national security does allowing them to work during this time make? Also of note, a full discretionary analysis of the I-485 applicant’s favorable equities and unfavorable factors is performed at the I-485 adjudication stage—therefore, there is no need to perform two full fledged discretionary analyses for the same applicant. Any discretionary examination on an EAD application should be very limited in scope.

The good news regarding budgeting is that USCIS is projected to have a budget of $4,760,784,000 for FY2022, a nearly $500,000,000 increase over FY2021. An appropriate portion of these resources should be allocated to eliminate the backlog of adjustment of status EAD applications. With increased resources, USCIS should consider the following actions to meet this goal: (1) Re-enact a regulation mandating the completion of initial EAD adjudications within 90 days, or at the very least, a reasonable time frame so that applicants are not stuck without work for 10 months; (2) Lower the bar for an expedite request on an EAD to be successful. It should not take an absolute emergency to speed up an EAD application. For example, so long as one can show that he/she has been out of work for an unreasonable amount of time (say 2 months), and it has resulted in significant financial loss to the applicant, and harm to the employer, USCIS should grant the expedite—especially as EADs typically should not take very long to adjudicate; (3) provide guidance for USCIS to accept late filings on nonimmigrant visa petitions that confer work authorization for those who allowed their nonimmigrant employment statuses to expire anticipating sensible adjudication times for their EADs, and treat these extensions as timely filed. Doing such would be consistent with USCIS policy since in such a situation, a delay in filing an NIV extension is commensurate with the circumstances, and due to extraordinary circumstances beyond the control of the applicant—for example, a reasonable expectation of an EAD being adjudicated within 3-5 months, which is not met as an EAD application is still pending a year after application; (4) allow premium processing of EADs. Indeed, the “Emergency Stopgap USCIS Stabilization Act” (HR 8089 passed the House of Representatives, HR 8337 passed Senate and signed by President incorporating HR 8089), signed into law on October 1, 2020 (Pub. L. No. 116-159), authorizes DHS to expand premium processing to some categories which are currently ineligible, including employment authorization. Under this law, EAD premium processing may be implemented without going through the standard regulatory process as long as the enacted fee not greater than $1,500 and processing time is not greater than 30 days. As of today, USCIS still has not enacted the expansion of premium processing to new categories. The most recent update USCIS has provided on this topic through a press release on October 16, 2020 stated: “Pub L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.” USCIS should be urged to expeditiously enact expanded premium processing, especially for EAD applicants as EAD applications in general are taking unreasonably long to adjudicate, and leaving applicants in unjustifiably difficult situations. Enactment of expanded premium processing would benefit both EAD applicants and USCIS. Applicants would have an option to have a result within 30 days as long as they are willing to spend $1,500. USCIS in turn would receive up to $1,500 for a simple EAD adjudication done quickly, which should be an attractive proposition for the agency.


Q&A’s published on the World Journal Weekly on April 25, 2021 1. I applied for my brother immigration visa that takes 10 years to approve 2. Permanent Immigration 3. My husband filedI-130 for me and he got my names wrong. Would that affect our processing time? 4. Can my employer apply for H-1B visa and green card at the same time? 5. Is parent eligible to apply for SSN and thereby insurance?

1. I applied for my brother immigration visa that takes 10 years to approve

I applied for my brother immigration visa that takes 10 years to approve and by the time Immigration approved my petition, my brother had died! So now I want to bring his family to us okay tell me how can I bring his family to us on that case right I am USA citizen ! My brother has four children one daughter that about 23 years old two under 18 plus and one 30 plus okay can my brother wife come on that immigration case

Mr. Lee answers,
The death of a principal beneficiary like your brother generally means that the case is over unless one of his dependent family members was residing in the US at the time of his death. Residence means the individual’s principal, actual dwelling place in fact without regard to intent, and for such a person, the definition does not require the individual to show that he or she was physically present on the exact date of death. If one of your brother’s dependent family members that remains eligible for immigration including counting the benefit of extra time under the Child Status Protection Act qualifies under the residence requirement, the case can continue under a provision of the immigration law, §204(l) relief for surviving relatives. Either the wife or one of the children who are still eligible to immigrate can fulfill the residence requirement. For the dependent beneficiary to request continuation of the case, he or she should specifically request USCIS “to reinstate the approval of the petition under section 204(l).”

2. Permanent Immigration

My boyfriend is from Iraq and wants to move to Oregon, US to live with me. We don’t qualify for the fiancée visa because we haven’t been able to meet due to covid. Can he get a work visa if he doesn’t have a job offer? What would be the best visa to go after so he can live here permanently.

Mr. Lee answers,
Without a basis to immigrate or to enter the US through family relationships, your boyfriend would generally have to obtain a work visa to work legally in the US if he comes into the country. Such work visas normally require a job offer. I note that if he manages to obtain an F-1 student visa, he may be allowed on-campus employment which does not require USCIS employment authorization, and later the possibilities of curricular practical training, pre-completion practical training, and post-completion practical training. If your relationship is serious, and you wish to apply for his fiancé visa, you would both have to physically meet prior to the fiancé petition being submitted to USCIS.

3. My husband filedI-130 for me and he got my names wrong. Would that affect our processing time?

I would like to know what would happen in our situation. He changed my last name to his, thinking that I had already done so, but I used my maiden name as it is on my passport. I would like to know if and how this would affect our process.

Mr. Lee answers,
Whether your husband filed for you under your maiden or married name should make no difference in the timing or the adjudication of the I-130 petition. Petitions are filed under married or unmarried names, and it generally makes no difference to an immigration officer. 

4. Can my employer apply for H-1B visa and green card at the same time?

I am a foreigner medical student, and I will finish my last year and then I will travel to USA -now, I have a friend in USA who owns a company and he agreed to apply h1b visa and green card for me so I can stay in USA. Now, can he apply for both H-1B  Visa and green card at the same time to minimize the processing time to get green card? After finishing my last year I will go to USA for training in a hospital On B-1 visa before my employer apply for H1b visa and green card and I will return to my country while the process of H-1B is running before my b1 visa 6months end and I will travel to USA in the 1st October on H-1B visa

Mr. Lee answers,
As you will finish your last year as a medical student before proceeding with your plan, I assume that you are requesting an answer to a future situation – perhaps in 2022. Unless your contemplated employer falls within the categories of entities that are exempt from the H-1B cap (institutes of higher education, nonprofit organizations related to or affiliated with institutes of higher education, nonprofit research institutes, or government research institutes), your employer would have to register the company and you with USCIS in March to see whether you could be selected since there are more H-1B applicants than there are available slots. If you are selected and assuming that your timing works out and that there are no Covid-19 restrictions or other bars, your employer can apply for both H-1B and the green card for you at the same time. The H-1B is a dual intent visa which allows the holder to have the intent to immigrate during the time that he or she is here as a nonimmigrant.

5. Is parent eligible to apply for SSN and thereby insurance?

I had applied for my mother I130 in Oct 2019. She was not in US at the time. Due to circumstances, she arrived in US on B2 visa in March 2020. She was eligible to stay until Sep 20, 2020. I filed her B2 extension due to Covid. No action has been taken on that application as of now. I also filed her I 485 Adjustment of Status since she was already here on Sep 16, 2020. Her I 130 got approved on Sep 23, 2020. I am assuming she is still in legal status as I had applied her B2 extension and then I 485 before original B2 expired. Since her I 130 is approved, can she obtain SSN based on I 797 receipt.

Mr. Lee answers,
Your mother will be able to apply for an SSN if she applies for an I-765 employment authorization application, has it approved, and then makes the SSN application. She is eligible to file for the I-765 as she has already filed the I-485 application. I have not heard that anyone is able to obtain an SSN based on an I-130 approval alone. Your mother’s pending B-2 extension makes no difference. Even persons in valid B-2 status are not allowed SSN’s.