Category: Q&A

1. It has now been seven months since my I-485 interview without any news; what should I do?

A reader asks:
In January 2025, I filed my I-485 application alongside my EB-1A petition. I attended my interview in October, and it went very smoothly. Immediately after the interview, my case status was updated to indicate: “The interview has been completed, and your case must be reviewed.” Since then—up to the present moment—there have been absolutely no further updates. I am not a member of the Communist Party; however, my undergraduate university is listed on the “Section 10043” restricted list. I am anxious and left wondering if this is the reason for the delay. I have already sent numerous letters to the White House and to my congressional representatives, but they haven’t been of much help. It has now been seven months since my I-485 interview without any news; what should I do?

Alan Lee, Esq. answers,
You are doing the type of tracing that may be helpful in having your case resolved. You have not mentioned whether you have attempted to contact USCIS, and you may wish to do so if you have not done it. When your case has exceeded one year from the date of interview without result, you may consider bringing a mandamus lawsuit in federal court to obtain some action on your pending case. Note that the suit would only be to quicken the time for adjudication and does not compel the agency to approve your case. A court could order USCIS to issue a decision quickly.

I note that a court may decide that not sufficient time has passed to file the suit or that USCIS has legitimate reason to hold onto your case.

2. I submitted I-485, but I’m very likely to be laid off soon. How can I delay things enough to hit the 180-day mark?

A reader asks:
I just submitted I-485, but I’m very likely to be laid off soon. How can I delay things enough to hit the 180-day mark without getting an interview or RFE, and then submit the I-485j with a new employer? If I delay the fingerprinting, does that mean the case won’t be transferred to a field office and thus won’t be adjudicated? How long after filing the I-485 do interviews usually happen? Some people say their case was transferred right after fingerprinting and they had an interview about four months after filing.

Alan Lee, Esq. answers:
Current processing times for 80% of employment based cases for adjustment of status show that the minimum period of time for adjudication is nine months with many cases going well beyond that time limit. In the Trump administration, the emphasis is on security and vetting, and so cases are slowing down, and it would appear that you will have your opportunity to submit the I-485 J for job porting at the 180 day mark. Please note that if you receive a RFE, you will normally be given 87 days to respond to the agency. You can delay the fingerprinting, but would have to request a rescheduling prior to the appointment date and give good reason for missing the biometrics appointment.

1. There is risk in redoing PERM as the US job market must be tested again

A reader asks:
I am struggling with whether to switch from an individual contributor (IC) to a manager. I am currently working as a Financial Analyst, and my immigration petition’s priority date (PD) is October 2022. Recently, I was offered a promotion, but if I take it, I will need to redo the PERM. What is the current PERM policy like? Is there any risk in redoing it? Would reapplying for PERM just potentially delay getting the green card? I heard that if the PD has been current for over one year, it might no longer be possible to renew the H-1B?

Alan Lee, Esq. answers:
I will assume for purposes of your question that you are from China since you otherwise would have resolved your situation already with an October 2022 priority date in either the EB2 or EB-3 categories. Moving to managerial level from being a financial analyst when the filing of the I-485 adjustment of status application and passage of 180 days have not yet been done (we assume that the I-140 petition is approved) most probably involves redoing the labor certification. The risk in redoing a PERM labor certification process is that the US job market must be tested again and if there are able, willing, qualified, and available US workers for the advertised position, the labor certification application may not be capable of approval. You are correct that when a priority date has been current for one year, the ability to continually extend H-1B status past the standard six years is no longer allowed if you have not filed for adjustment. In your situation, you may decide that the safer approach is to continue being a financial analyst and obtaining permanent residence under the tunnel. Even where the I-140 is approved, I-485 filed and 180 days elapsed since the time of filing, job porting would involve you and the company demonstrating to USCIS that the new position is in the same or similar occupation.

2. Will my job duties change affect my I-485 submission?

A reader asks:
I started in data-related work,  now I support SDEs and want to switch fully into SDE in my team. My I-140 has been approved, and my priority date (PD) is about a year away. The job location and entity remain the same, but job duties will change. My lawyer said it’s fine, HR said the overlap is 50%, so no need for new PERM or H-1B amendment. My boss thinks it is not a big issue. Will this affect my I-485 submission or lead to an RFE or issues at the interview?

Alan Lee, Esq. answers,
This is an area to be careful about. If the job title changes and duties are different from the duties as outlined in the labor certification, this could be a concern with USCIS as constituting an uncertified job position. You may wish to discuss with your lawyer and HR the changes and how they intend to present the changes to USCIS.

1. The premium processing is technically only for the I-140 petition

A reader asks:
Last February, I filed an I-140 petition to downgrade my EB category to EB-3 (non-premium processing), submitting it concurrently with my I-485, I-765, and I-131 applications. At the time, only the EB-3 “Dates for Filing” (Table B) had become current; however, the “Final Action Dates” (Table A) were not far behind, so I didn’t feel it was strictly necessary to pay for premium processing for the I-140. My attorney also advised against expediting the process right at the start; later, when I saw that the visa bulletin priority dates had retrogressed significantly, I decided against expediting it after all. About two months later, I received my Combo Card; however, it has now been 15 months since I filed the I-140, and it still hasn’t been approved—a timeframe far exceeding the normal processing standards. I have already submitted two inquiries via the USCIS website, but I haven’t received a response to either of them. Are they essentially trying to force me to pay the premium processing fee before they will actually process my case?

Alan Lee, Esq. answers,
You can continue making inquiries with USCIS, and hopefully you will soon receive a decision. You can also contact your US Congressman or Senator’s office for assistance. Otherwise, if you believe that you cannot wait much longer, you may wish to consider paying the premium processing fee which is presently $2965. As you may be aware, paying the premium processing fee does not mean that you will receive an approval within 15 business days. You can also receive a request for evidence, notice of intent to deny, or a denial. In addition, an approval of the I-140 petition under premium processing does not mean that you will receive a concurrent adjudication of the I-485. It may turn out that action on the I-485 will follow, but the premium processing is technically only for the I-140 petition.

1. Filing an I-485 may be viable as long as you have maintained legal nonimmigrant status

A reader asks:
I filed for I-140 two months ago without premium, and it’s still pending. Unfortunately, I was just laid off. Company policy says they won’t withdraw the I-140, but if there’s an RFE, the company won’t respond. If everything goes well, it may still be approved. Now, that PERMs are often getting denied, I’m wondering: If I return to the same company a year later, and my I-140 is still pending and PD is current, can I expedite the I-140 and file I-485?

Alan Lee, Esq. answers,
The scenario that you suggest of returning to the same company a year later when the I-140 is still pending, the priority date is current, and at that point expediting the I-140 and filing an I-485 adjustment of status application may be viable as long as you have maintained legal nonimmigrant status and the company is willing to continue sponsoring you for permanent residence because it has a permanent full-time position for you consistent with the terms of the labor certification.

2. USCIS processing time for AP, 80% of cases exceeds a year

A reader asks:
I filed my I-485 application concurrently with my EAD application in early October of last year; however, I did not apply for Advance Parole (AP) at that time. My application was approved last December, but for various reasons, I still did not apply for AP. At the time, I estimated there was a high probability that I would need to return to my home country sometime during the first half of this year. I also still held a valid H-1B visa at that time. Now that my H-1B visa has just expired, should I apply for AP? I’ve heard that current processing times for AP are approaching one year; given this, is there any practical point in applying for it now?

Alan Lee, Esq. answers,
I assume that the application that was approved last December was for the EAD and that your I-485 remains pending. The advance parole is a safer way to travel in your case as it does not entail interviewing with a US consular officer if it is the visa that is expired, but not the H1B status itself. If the status is expired, the only choice for leaving would be advance parole. During the Trump administration, temporarily leaving the US is not recommended for nonimmigrants for nonemergency reasons because of the heavy vetting at the consulates and airports. You can apply for advance parole now, but note that the published USCIS processing time for 80% of cases exceeds a year. (For the readers, this timeline is not applicable in many situations in which USCIS receives concurrent applications for both EAD and advance parole and chooses to process both at the same time).

1. If you are traveling under advance parole, you are not required to have a H-1B stamp

A reader asks:
I scheduled an H-1B interview in mid-to-late August.  My H-1B is expiring, and I can’t file for extension until early August. I plan to enter the US using advance parole. Do I need to get H-1B stamped abroad? If I get a NOID or am denied and then go abroad to get H-1B, will it be too late?

Alan Lee, Esq. answers,
If you are traveling under advance parole, that is separate from H-1B and you are not required to have a H-1B stamp in your passport to return. I do not understand why you would go abroad to get a H-1B stamp if you are denied or obtain a notice of intent to deny (NOID). Perhaps you are thinking that you will overcome the NOID and the denial will pertain to maintenance of status in the US rather than the merits of the H-1B petition itself. In that case, you would likely have to reschedule the appointment at the consulate as the timing would likely not work out and the DS- 160 used to schedule the appointment would no longer be accurate.

2. Why did I not receive a receipt for my filed application?

A reader asks:
I filed for expedited NIW processing two months ago and still haven’t received the receipt notice. I first submitted in December 2025, but it was returned in Feb due to an expired form. I corrected it and resent the same day. Until now, I still haven’t received anything, and the check hasn’t been cashed. I did it myself and was later had a lawyer review the package. The lawyer said it looked fine. What could be wrong?

Alan Lee, Esq. answers,
There are a number of reasons for which you may not yet have received the receipt notice after returning the package with the correct form following rejection. You have said that you had a lawyer review the package, but a lawyer who is not working on the case may not give as much attention to it as one on which he or she is actually doing the work. You may have sent the package to the wrong address or given the wrong amount of payment or made mistakes on the forms. We have also heard recently that USCIS has not been particularly speedy in working on resubmitted cases. Hope that you hear something soon.

1. If a PERM were to begin today, it might not be completed within 21 months

A reader asks:
I just received an email from my company stating that our PERM process is being temporarily suspended due to current market conditions, with no definite timeline for resumption. My Prevailing Wage Determination (PWD) has already been approved, and we are currently in the recruitment advertising phase—which began in March—so it is highly likely that we will be unable to proceed with the standard filing. My H-1B visa is set to “max out” (reach its six-year limit) in October of next year. When I initiated the green card process, the company agreed to sponsor me only under the EB-3 category, as EB-2 sponsorship is reserved exclusively for employees at the Senior Manager level or above. My employer is a global consulting firm. Currently, the business within my specific department remains stable, my individual performance is strong, and I am leading a small team. I never expected such an abrupt turn of events. Could you please offer any viable strategies or options I might consider?

Alan Lee, Esq. answers,
Under the circumstances where it appears that your H-1B max out is next October (21 months from the date of this answer), and you seem fairly certain that filing on schedule will be impossible due to the PERM processing being paused by the company with no clear restart date, you can either try to further discuss this with the company, or if truly dissatisfied, attempt to move on to another organization with the understanding that it will begin the PERM process for you as soon as possible. If a PERM labor certification application was to begin today, it is highly doubtful that it would be completed within 21 months even if everything went well. But perhaps with your company or another organization, you could make plans as to how you could cover the time gap in status under which you would not be covered by an H-1B approval. Good luck.

2. You would violate H-1B status if you worked with the EAD for another employer

A reader asks:
I used to think once I used my EAD, I could not return to H-1B. But ChatGPT told me that once I re-entered the US using the combo card, I would become a parolee and can work for my employer.  If I lose my job, the 60-day H-1B grace period doesn’t apply.  I can even collect unemployment benefits or work for another employer using EAD. And if I want to go back to H-1B, an employer just needs to file a transfer.  So I can freely use EAD during I-485 pending and not worry about getting back on H-1B if I-485 is denied.  Is this understanding correct?

Alan Lee, Esq. answers,
No, unfortunately your understanding is not correct as you would be in violation of H-1B status if you worked with the EAD for another employer. The USCIS guidance appears to allow H-1B holders to reenter the US under parole and then file for extension of H-1B status inside the US through the same employer. It does not contemplate free open market EAD employment and then being able to switch back to H-1B status inside the United States.

3. An individual self-petitions for the NIW, the case can continue even the individual has changed jobs.

A reader asks:
My National Interest Waiver (NIW) petition—which was sponsored by a previous employer—was approved. However, I subsequently changed jobs. Do I need to file a new I-140 petition now? I saw a post on LinkedIn claiming that one must re-file the petition independently in such cases. Could you please confirm whether this is true?

Alan Lee, Esq. answers,
Where a previous employer sponsored an approved NIW and the beneficiary changes jobs, a new I-140 petition must be filed. Where an individual self-petitions for the NIW, the case can continue even where the individual has changed jobs.

4. It has usually taken much time in the past for the agency to work on a returned case

A reader asks:
I applied for an EB-1A visa, and my I-140 petition has already been approved. I proceeded to the U.S. Consulate in Hong Kong to apply for my immigrant visa. In January, I attended my interview at the Hong Kong Consulate but was refused on the spot. My status was updated to “Refused,” and in March, it was updated to “Returned to NVC.” Does this constitute a Notice of Intent to Revoke (NOIR)?

Alan Lee, Esq. answers,
Where a US consulate updates case status to “Returned To NVC”, it means that the consulate has or will send your case back to USCIS. An Immigration officer will look over your case along with notes from the consulate and either reaffirm the decision or send you a notice of intent to revoke. It should be noted that these are low priority cases with USCIS, and it has usually taken much time in the past for the agency to work on a returned case. Good luck.

1. You recently changed jobs, and you may wish to push the company to begin your PERM application as soon as possible

A reader asks:
I recently changed jobs, and my immigration application’s priority date (PD) is early January 2023, and Chart B is about one year from becoming current. Now, PERM seems hard to process at the company, and the default path is NIW. I only have a master’s degree and nothing else, just 5+ years of experience in AI (Artificial Intelligence) and ML(Machine Learning), and my current position is also in the MLE (Machine Learning Engineer) field. However, my lawyer said that the risk of expedited processing is significantly higher.   The company is likely to support both PERM & EB2 – NIW. I feel NIW-EB2 approval odds are already low. If my first NIW application is denied, should I immediately push to start PERM?

Alan Lee, Esq. answers,

I assume from your fact pattern that you already have an approved I-140 petition with 2023 priority date from your prior job. As you are acknowledging the difficulties of the NIW petition and your lawyer is telling you that the risk of expedited processing is significantly higher, that shows a lack of confidence in both of you in the merits of the NIW case. As such, unless there are factors of which I am not aware, you may wish to push the company to begin your PERM application as soon as possible and not wait until the NIW is denied.

2. I submitted my I-485 application recently and was laid off today. What should I do now?

A reader asks:
I was laid off today; at least the suspense is over. I submitted my I-485 application this January, and there are less than three months left before the 180-day mark. Our team just had a massive layoff, cutting half the headcount in half, and I was one of those let go. I have no news on the green card application, and haven’t even received my I-765 or EAD yet. I switched to this company and started a new PERM, filing the I-140 and I-485 concurrently, both have been pending for under 180 days. My 6-year H-1B period is used up and I can now renew only year by year.  I’ve heard that in this situation a new employer can’t keep extending the H-1b and can only wait for the green card or EAD to be approved.  What should I do now? Could I negotiate with the company to pay out the severance gradually through payroll each month, so that if USCIS interviews me, I can show pay stubs and pretend I’m still on the job?

Alan Lee, Esq. answers,
Unfortunately, where the I-140 petition has not even been approved and an individual loses the position with three months to go before the 180 day mark, we cannot state that the matter can be salvaged, as the employer clearly has no intent any longer to offer a permanent full-time position. You say in your fact pattern that you switched to this company and started a new PERM, and that raises a question as to whether you already have an I-140 approval from a prior employer. If so, you may be able to use that once with a new employer to gain a year with a new H-1B while contemplating your next steps.

1. If the NIW was company-sponsored, losing your position may have more serious consequences

A reader asks:
I recently filed my I-485 application, but my company’s business operations have become somewhat unstable. I am concerned that potential unemployment might negatively impact my I-485 case. My question is: if my I-485 application is based on a National Interest Waiver (NIW) petition, am I permitted to be unemployed while the application is pending?

Alan Lee, Esq. answers,
Assuming that the NIW is through self-petition, losing the job in the I-485 stage may not tremendously affect the application although you may still have to show that you remain committed to the type of work upon which the NIW petition is based. If the NIW was company-sponsored, losing your position may have more serious consequences although you may still be able to port your case to a same or similar position if the I-140 has been approved and the I-485 application pends for 180 days or more.

1. Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas

A reader asks:
A friend’s I-485 is currently pending, but already received both EAD and I-131 (separate cards), and is just waiting for his priority date to become current. He is currently working on an O-1 visa (without a visa stamp due to change of status within the U.S.) and recently got selected for H-1B.  His lawyer said he must change to H-1B status in October and only then can he travel abroad for stamping.  If he leaves the U.S. before October while still on O-1, will USCIS consider that as abandoning the I-485? Even with advance parole? Also, they he cannot travel on O-1 before October, can he go out after October, get the H-1B visa and return using it?  Would that invalidate the I-485?

Mr. Alan Lee, Esq. answers,
Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas, an applicant must change status in the US prior to going outside the US to escape paying the fee. That is why your lawyer is insisting that you remain in the US until October because that is when the change of status becomes effective. If afterwards you leave the US, such would not be considered an abandonment of the I485 since H1B holders can leave and return to the US during the pendency of I485 applications. Your friend could also leave under advance parole, and that would not invalidate the I485 application. If your friend leaves the US before October while still on O-1, USCIS would consider that as abandoning the I485 if attempting to come back in on the O-1 petition.

2. You can only file I-485 straightaway if both the job location and the legal entity are unchanged

A reader asks:
Because the PERM labor certification for my new company has been significantly delayed, yet my Priority Date (PD) is currently “current” (available), I recently reached out to my previous employer and received a job offer. However, the work location has changed (moving from San Francisco to New York). May I ask: under these circumstances, can I use my original I-140 petition to directly file my I-485 application? I understand that the prerequisite for directly filing an I-485 based on a previous petition is typically that both the work location and the legal entity (employer) remain the same. Is it possible to directly file an I-485 if the work location has changed, but the legal entity remains the same?

Alan Lee, Esq. answers,
Unfortunately, what most people say is correct – that you can only file straightaway if both the job location and the legal entity are unchanged. Perhaps your former employer is still able to offer you a position in San Francisco. If so, it would declare on form I-485 J supplement, “Confirmation of Valid Job Offer or Request for Job Portability under INA Section 204 (J)” that it has an existing valid job offer for you in San Francisco. If you work for the company in San Francisco for a period of time after obtaining permanent residence and the company at a later point decides to transfer you to New York, that is another story.

1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days

A reader asks:
My company helped me file an EB-1A petition under Premium Processing (PP), but we subsequently received a Request for Evidence (RFE)—the deadline for our response is in May. Since the company is the petitioner, the preparation process for much of the documentation has been opaque to me. I feel that the law firm collaborating with the company is particularly unreliable and that the application they prepared is of very poor quality. However, they are unwilling to withdraw the petition and insist on preparing the RFE response themselves. I simply cannot bring myself to trust them. My question is: can I now file a new petition on my own (DIY)? In this new filing, I would act as the petitioner; I would personally draft the petition letter and compile the exhibits, which would presumably differ from the materials prepared by the company. I intend to use Premium Processing for this new filing as well. Consequently, the timelines for the two cases would overlap—essentially, one case would be pending an RFE response, while the other would be a brand-new submission. The company has refused to show me the actual application package they prepared; from start to finish, I merely provided them with certain supporting documents and recommendation letters. Therefore, I am confident that if I handle the filing myself, my petition letter and exhibits will definitely differ from the ones they wrote. Since the petitioner would be different, there would be distinct differences between the two cases. Would this be considered a “duplicate filing”? (Note: I already have a pending NIW petition, as I anticipated that the EB-1A petition filed by the company would likely be denied.)

Alan Lee, Esq. answers,
It appears that you have two balls in the air and you want to put up a third. This could prove confusing, but I cannot say that putting up a personal EB-1A petition for yourself under premium processing would not work if you are truly qualified for the category. Please note that paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days. Where a case is complicated, USCIS may well hold onto the case and begin adjudicating it in its good time. Afterwards, you would likely have to request back the premium processing fee as the agency has a history of not automatically refunding it if it does not reach the case within the time limit. Also that USCIS may reach a case within 15 business days, and that it would fulfill its obligation under premium processing by issuing a request for evidence or notice of intent to deny or approval or denial.

2. How can one successfully apply for an EB-1A visa?

A reader asks:
I hold both a bachelor’s degree and a Ph.D. from one of China’s top two universities, with a brief master’s degree program in continental Europe sandwiched in between. I currently work in the investment banking division of a securities firm, focusing on IPOs and M&A transactions; however, I have not published any academic papers or engaged in other similar scholarly activities. I am considering applying for an EB-1A (Extraordinary Ability) visa. Given my current profile and circumstances, do I have a realistic chance of success?

Alan Lee, Esq. answers,
Generally speaking, a person with your bare-bones fact pattern would not seem to be a great candidate for the EB-1A extraordinary alien category, and as you are aware, the current climate is not encouraging. We suggest that you look through all 10 criteria of the EB-1A category, and pick out at least three that you can say that you qualify under. Then you may wish to make an appointment with an immigration lawyer familiar with EB-1A filings and consult him or her with your portfolio or a detailed resume. Just from your facts, one cannot say definitively whether you could or could not qualify.