Category: Q&A

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. After being fired and H-1B grace period is up, you can try to return to school to maintain nonimmigrant status

A reader asks:
The first time I applied for PERM in 2020, I was audited and I submitted supplementary materials. In early 2022, I was notified that it was rejected. The reason for rejection was that the recruitment advertisement did not comply with regulations. In mid-2022, the company was acquired, and the new company ran a second PERM and encountered a hiring freeze. After waiting for 6 months, I submitted the second PERM application in October 2023. However, I was suddenly fired last month and the PERM is still being processed. It is now the 6th year of H1-B and is valid until November. I have interviewed with several companies lately, but after chatting with HR, I was rejected. Some companies require to have I-140 in the 6th year. Some said that the company does not apply for PERM this year. They also contacted the company where I was fired. After the first round of interviews, they arranged for a second round of interviews next week. The result was two days before the interview. HR called and said role restructure, and the interview was canceled. I want to apply for NIW, but I only have a Master’s degree in CS from the US + work experience as a coder. I have not published any papers or participated in academic conferences. There are only more than 30 days left in the 60 day grace period, and I feel like I can no longer find a job due to status issues. What should we do in this situation now?

Arthur Lee, Esq. answers,
Based upon your summary of your education and work experience along with your lack of published papers and academic conferences, I do not believe that you would be eligible for EB-2 NIW. Unfortunately, your pending PERM will no longer be valid since your company laid you off (unless they agree to continue to sponsor you with a promise of having the position ready for you at the agreed wage upon your green card approval). Therefore, you would likely need to start over and find another company to agree to sponsor you from the beginning of the PERM process.
As you only have 30 days left in your 60 day grace period, you will need to either find a way to maintain your nonimmigrant status or leave the United States. To maintain your nonimmigrant status, you may try to find a company to hire you on your 6th year of H-1B, although this may pose a challenge to both you and the company since you would be capped at working for until November, and then you will need to find ways to maintain valid working status or stop working and go back to school, or leave the US. If you leave the US for a year, your 6 year H-1B allowance would reset, but you would need to win the cap lottery again or find a cap exempt employer to be eligible to work in the US. If you are lucky enough to find employment overseas with a multinational company with a branch or affiliate in the US, and you work in a year in an executive, managerial, or specialized knowledge capacity, then the company can transfer you to the US to work in its related company under L-1 status for 5 or 7 years.
Other ways of maintaining your nonimmigrant status include going back to school and changing your status to F-1 for the duration of your education, or changing your status to a “B” visitor, during which you may interview for future jobs. Best of luck to you.

2. Although the new job salary is $20,000 less than before, those I-485 applicants with higher salaries will not be affected 

A reader asks:
I have submitted my I-485 and recently received an offer base that is $20,000 yuan less than the base of the old company. I would like to ask, if I accept the offer and submit I-485J through the new company, and the salary is $20,000 less than the old company, will it affect the approval of I-485?

Alan Lee Esq. answers,
You would be relying upon a transfer of your case under I-485 J, which allows the labor certification and I-140 petition to remain valid if the I-140 petition is approved and the I-485 application pending 180 days, and the new job is in the same or similar occupation. Many factors are taken into account including job duties, SOC codes, job title, of which a $20,000 decrease is a factor to be looked at. It should be noted that $20,000 less when an individual is making a salary of $150,000 is less concerning than when the individual is making $50,000 or so under the labor certification.

3. Although your consulate office is listed in China, you may be able to have H-1B interview in Europe 

A reader asks:
Currently, I am in a small European country and plan to enter the United States to work in the near future. When the first H-1B visa address was chosen in China, there was a high probability that it would be checked. Considering that the current work is very tight and the check-in time is long, can the interview address be changed from China to the country where I currently am in Europe? Also can I get my passport back during the domestic visa interview?

Arthur Lee Esq. answers:
Even though you listed your consulate office as one in China when you filed your I-129 H-1B petition, you may be able to conduct your nonimmigrant visa interview in the European country that you are currently in. You may wish to check the consular post website to see whether it has guidance on its attitude toward third country nationals. If it accepts such cases or you are a resident in the European country, you can file a DS-160 with the European country after your H-1B petition is approved, and schedule an interview there. You may need to provide reasons why you are doing an H-1B interview in a third country rather than your home country–it is likely that a consular officer will be satisfied with your answer that you are currently living in that country and that it is much more convenient than going to China to conduct the interview. On your passport, a consular officer in this European country or China will take your passport to process the visa. The consulate may hold on to your passport for administrative processing if needed, but once a visa approval or denial is issued, you will have your passport returned.

1. I-485 has been waiting for more than 180 days, you can submit I-485J to change companies.

A reader asks:
I am an H-1B programmer and have applied for EB-2, but the priority is not current yet. H-1B sixth year. I submitted I-485 using Form B in early October last year and had my fingerprints taken in December, but unfortunately, I was laid off. Recently, the original company was transferred, and I got an offer from another new company. The work intensity of the two cultures is almost the same. The new company offers a lot of money, which is a level higher. My understanding is that the original company can 100% protect the green card, but the new company offers a lot of money and the job content is also interesting. If the I-485 is less than 180 days, what is the probability of being RFE’d if I go to the new company to get the I-485? If I-485 is rejected and unfortunately, I am laid off again, can I still COS B-2 pending to buy time and find a job?

Arthur Lee, Esq. answers,
In this answer, I assume that you have an EB-2 I-140 already approved or that your EB-2 I-140 will ultimately be approved, and that your former employer did not rescind your I-140. As long as your I-485 has been pending for 180 days or more, you may put in an I-485J porting request. For the porting request to be successful, you must be in a job that is in a “same or similar” occupation as the position on your I-140. Since your priority date is not current, it is unlikely that you will receive any RFE since USCIS will not adjudicate your case until you have a date available. Anyhow, if you receive a request for further evidence, that is not a bad thing–this is an opportunity for you to file an I-485J porting request. Since you properly filed your I-485 in October and this question is now being presented in April, I believe that close to 180 days have elapsed from the filing of your I-485 application. In such a case, if you receive an RFE (which typically allows you 87 days to post a response), you can file an I-485J porting request in response to your RFE. As long as you file the I-485J response at least 180 days after you file your I-485 application, your porting application can be accepted. Therefore, if your RFE is issued at least 90 days after your I-485 submission, you are likely eligible for porting assuming your new position meets the eligibility requirements–just make sure that you don’t submit your RFE response with the I-485J until 180 days have elapsed from the filing receipt date of your I-485.
In order to protect your working status in case of an I-485 denial, you may consider extending your H-1B beyond a 6th year through an H-1B transfer/extension to your new employer. You may be eligible for the H-1B beyond the 6th year if your I-140 or PERM Labor Certification Application (ETA 9089) was filed more than 365 days ago or the I-140 is approved and the priority date is still not available. In this way, you will have extra time on your H-1B and can continue to file extensions until your green card application is approved or denied. If your adjustment of status is denied, you will still have the time remaining on your H-1B to continue working for your designated employer. During that time, and assuming that the denial reason does not impede the following, you may try again with the porting employer or try to find another employer willing to sponsor you for permanent residence.
If you do not take the H-1B extension route, you may still attempt to change status to B-2 to try to find a new job as interviewing for jobs is permitted under this status.

2. I-140 application will not affect the issuance of H-1B by the consulate.

A reader asks:
I haven’t been back to China for a long time. Currently, I have the I-140 approval letter and can only go back and apply for the H-1B visa before coming back. I-140 approval has not arrived yet. Is it difficult to return to China to apply for an H-1B visa? I wonder how long it will take to apply for H-1B now?

Alan Lee Esq. answers,
At this time, there appears to be more scrutiny of Chinese students, especially those in the STEM programs at the postgraduate level, by CBP at certain airports in the US. That being said, the H-1B visa is dual intent, meaning that you can have both immigrant and nonimmigrant intent at the same time. So the fact of the I-140 filing should not affect any decision concerning H-1B visa issuance at the consulate. Current consular wait times in China to get an appointment at the American consulate are 56 days in Shanghai if there is an interview and one day if no interview required. Also seven days in Beijing if an interview is required and one day if not. Please note that this does not take into account any further time after the interview if your case is placed under administrative processing.

3. There is nothing that says that an individual cannot hold two full-time H-1B positions at the same time

A reader asks:
I was recently laid off by my company, but I am still on the payroll, and the Termination Date is just after 180 days of my I-485 pending. Now, I have received an offer from a new company, and they want me to start work as soon as possible, preferably next month. However, I have two questions now: 1. Is it illegal if I start work before the Termination Date? Can an H-1B holder work two full-time jobs at the same time? If I start work before 180 days of my I-485 pending, can I pretend nothing happened and then submit my 485J after 180 days? 2. If neither is feasible, what should I do? Of course, I understand that it would be safer if I could postpone it to after the Termination Date, but the new company only gave a verbal offer. I am very worried that if I start work too late, they will not give me an offer.

Alan Lee Esq. answers,
I am sorry to hear that you have been recently laid off by your company, but it is favorable that your termination date is so long after the filing of your I-485. On the question of illegal employment if you join the company now, there is nothing that says that an individual cannot hold two full-time H-1B positions at the same time although it may be difficult to see how this can be done in terms of the number of hours in every day. Joining another company without a proper work authorization is not legal even if you have filed the I-485 application. If you have an EAD card through the filing of form I-765 with your I-485, you may be able to legally join the new employer. After the 180 days has passed, you and the new employer can file the I-485J supplement so long as the new position is in the same or similar occupation.

1. Your EB-2 is nontransferable to a petition by your wife

A reader asks:
I am the most common PERM EB-2, and I am waiting for the priority date to become current. My spouse is currently studying for a Ph.D. and hopes to apply for EB-1 in the future. However, since EB-1 also must wait for priority date now, we are considering whether to file NIW to get the priority date first, as the NIW priority date can also be used for EB-1 later so the EB-1won’t have to wait too long. I want to confirm that if my EB-2 has been current, it will be of no use to my spouse? My spouse still must take advantage of her own NIW? Does our situation mean that our applications are completely independent from each other? If one of us is fast, we can get married before submitting the I-485 together. Whether there is no need to get married in advance in order to prepare the I-485 a few years later?

Mr. Alan Lee Esq. answers,
The rule of thumb is that follow to join privileges or being able to join cases ends at the time that the principal applicant is approved for permanent residence. That being said, USCIS and/or American consulate posts are prone to be more suspicious of cases in which the marriage comes about when the permanent residence benefit is close. As to your specific thoughts, you are correct that your EB-2 is nontransferable to a petition by your wife.  Your wife filing and having an approved NIW petition would give her a priority date that could be transferred to a later EB-1 petition.  If you are doing one case and your intended spouse is doing another, those cases are independent of each other and the dependent can join at the I-485 or consular processing stage. If you choose to marry late, please be aware that the circumstances of your marrying may be looked at harder than if you married earlier.

2. Porting your Employment

A reader asks:
I am in the central part of the country and have encountered layoffs. My current situation is that H-1B expires on July 30. RD is 173 days as of July 30th. It’s a bit hopeless to find a job in the next few days to renew the H-1B. I-485 has been submitted, but it has not been completed for 180 days. Some people say that as long as I am not scheduled for a green card interview during this period, I shall be safe. Is that so? Can I transfer into an F-1 and wait for green card? Or do I need to change jobs? or hope that my green card will be approved on July 30? Asked Emma, ​​said my case was in NBC for more information. PD is September 2019 and it is already current. If I find a job, do I need to submit H-1B and I-485J at the same time?

Mr. Alan Lee Esq. answers,
Generally, an employer sponsoring an applicant for I-140 and I-485 should have the intent to offer permanent employment at the time that the employer signs off on the I-140 and the I-485 J “Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA section 24 (J)”. If your I-485 pends for 180 days and you have a new employer in the same or similar occupation willing to continue your sponsorship and signs off on a new Supplement J, you can submit it to USCIS to attempt to port your employment to the new employer. In the meantime, you may consider applying for an EAD on form I-765 Application for Employment Authorization so that you can be available for employment with an employer other than your current one. Also you gave a certain date that your H-1B expires. Have you taken the 60 day grace period to find new employment into account? If you have a new employer willing to do so, it can also alternatively petition for a new H-1B on your behalf, preferably within the 60 day grace period.

3. For overseas immigrant case receipt, you can attempt to ask for assistance by emailing

A reader asks:
I recently applied for NIW. Because I applied from overseas, my $700 payment had been deducted, but I have not received a receipt number yet. I asked Emma today and she didn’t find my application information, and it has been more than a week since the fee was deducted. How long does it take to get the receipt number from Emma?

Mr. Alan Lee Esq. answers,
The good news is that your case has been accepted by USCIS since you somehow know that the $700 filing fee has been deducted. Receipts from USCIS for persons filing from overseas can cause headaches. We have seen receipts for overseas clients being returned to USCIS for non-delivery. A mailing address in the US may help as is having a legal representative in the US since USCIS would send a copy of any notices including receipts to the legal representative. Emma is not a tool focused on giving receipt information back to individuals. Receipts from USCIS to US addresses are generally received between 2-3 weeks from the time of sending out the petition or application to USCIS unless the case is filed online or through premium processing, in which case receipts come much sooner. You may attempt to ask for assistance by emailing lockboxsupport@uscis.dhs.gov. Hope that you receive your receipt soon!

4. You should stay with the employer for a period of time after obtaining permanent residence 

A reader asks:
I applied for EB-3 and wanted to get a green card. The reason why I wanted to get a green card was that I studied at the university in the United States and worked in the United States for five years after graduation. For nearly ten years, I felt that there were many ways out after getting a green card. I returned to China last year, and before that my green card was already current. Now I have the opportunity to transfer back to my old employer in the United States. I can submit I-485 and get a green card in one year. However, I plan to live in China long tern in the future, and I feel that the cost of returning to China after getting the green card is a bit high. In addition, I am a female, 29 years old this year. During the year after I returned to China, I didn’t find a partner in China. If I return to the United States for a year and delay another year, I will be 30 years old when I return to China. It will feel more difficult to find a partner or work in the workplace.

If the original boss supports the transfer back to the United States, he can apply for the L-1 visa and continue to use the previous I-140. If I am not with the current company, there will be no need for L-1 but H-1B, and no need to use the original I-140. I have about one year and five months left on my H-1B. I will need one year and 5 months to complete my PERM & I-140, then submit I-485.  Is there enough time?

Mr. Alan Lee Esq. answers,
I will assume that your calculation of about one year and five months left on your H-1B is accurate. If so, your timing plan is probably not viable in completing the PERM process through another employer. Currently it is taking approximately two years taking into account only the time required to obtain an ETA 9141 prevailing wage determination and the processing time of the ETA 9089 PERM application (19 months) which does not account for the further time required to set up the case and conduct recruitment along with preparing the I-140 petition. Your option to obtain permanent residence through a transfer back to your old employer and continuing the green card application appears more viable. Under either situation, you will have to stay with the employer for a period of time after obtaining permanent residence as US law requires an applicant through labor certification to show a commitment to work with the sponsoring employer. So you will have to think about timing and commitment in making your choice whether to come back to the US to pursue permanent residence or staying in China, your professed preferred long-term residence and marital location.

Overseas immigration visa? Adjustment of status? Which is better?

A reader asks:
When I submitted my I-140, I chose IV at the suggestion of my lawyer, which means I will have an interview in Guangzhou. But I have actually been in the United States and I don’t plan to return to China in the future. So, can I change it to submitting I-485 in China? If so, when should I submit it? The problem now is that I recently had an I140 with a very late PD (PD is not C) passed, but I found that when I checked the case status, it showed that the case was sent to the State Department. I am confused, does this mean that I will have to go back to China and go to Guangzhou to apply for an immigrant visa in the future?

Mr. Alan Lee Esq. answers：
The initial question should be why your lawyer advised you to choose immigrant visa processing rather than adjustment of status. If the lawyer’s advice is sound, then it may be detrimental to you to try adjustment of status. You should probably have another discussion with your attorney before making a decision to switch to adjustment of status. Procedurally, it does not matter much that the I-140 petition is now with the State Department. If it makes sense for you to adjust status, you can file form I-485, and USCIS will generally recall the approved petition from the National Visa Center. You or your lawyer can also attach a statement on the I-485 application that your approved I-140 petition is now with the National Visa Center and asking it to request NVC to return the petition.

1. I-485 has been submitted before being layoff, can apply for form I-765 

A reader asks:
I am in the central part of the country and have encountered layoffs. My current situation is that H-1B expires on July 30. RD is 173 days as of July 30th. It’s a bit hopeless to find a job in the next few days to renew the H-1B. I-485 has been submitted, but it has not been completed for 180 days. Some people say that as long as I am not scheduled for a green card interview during this period, I shall be safe. Is that so? Can I transfer into an F-1 and wait for green card? Or do I need to change jobs? or hope that my green card will be approved on July 30? Asked Emma, ​​said my case was in NBC for more information. PD is September 2019 and it is already current. If I find a job, do I need to submit H-1B and I-485J at the same time?

Mr. Alan Lee Esq. answers,
Generally, an employer sponsoring an applicant for I-140 and I-485 should have the intent to offer permanent employment at the time that the employer signs off on the I-140 and the I-485 J “Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA section 24 (J)”. If your I-485 pends for 180 days and you have a new employer in the same or similar occupation willing to continue your sponsorship and signs off on a new Supplement J, you can submit it to USCIS to attempt to port your employment to the new employer. In the meantime, you may consider applying for an EAD on form I-765 Application for Employment Authorization so that you can be available for employment with an employer other than your current one. Also you gave a certain date that your H-1B expires. Have you taken the 60-day grace period to find new employment into account? If you have a new employer willing to do so, it can also alternatively petition for a new H-1B on your behalf, preferably within the 60-day grace period.

2.  Withdrawal I-485 by mistake, attorney should rectify the situation as quickly as possible 

A reader asks:
I am currently preparing I-485 materials. Before my current company’s H-1B, a more complicated situation occurred. I would like to ask how to prepare the materials? The company made a personnel adjustment around April 2023, and I was not affected. However, the HR oolong put my name on the layoff list and sent it to the company’s lawyer to cancel the H-1B. The withdrawal application was submitted at that time. Later in September, I contacted the company’s lawyer. She realized that there was a problem before, so she quickly issued another H-1B application, added premium processing, and approved it quickly. The lawyer said that she was also applying to cancel the previous withdrawal application at the same time, so I now have two H-1B approval notices from the same company. According to the lawyer, the H-1B withdrawal application did not take effect, so there is no problem. Do I need to ask a lawyer for any documents to prove this? The I-485 documents only include the two H-1B approval notices. Do I need to submit documents for the application to revoke the H-1B and the subsequent revocation of the H-1B?

Mr. Alan Lee Esq. answers,
It appears that your company’s attorney attempted to rectify your situation as quickly as possible after you made her aware of the mistake. It is commendable that she was also attempting to cancel the previous cancellation notice to USCIS at the same time. On the I-485 application, it might be helpful to have the lawyer explain the entire sequence of events so that USCIS has a complete understanding of your situation prior to making an adjudication on your I-485 application. If possible, the lawyer can also use the opportunity to explain if and how you might still be eligible for I-485 adjustment even in the event that USCIS does revoke the first H-1B petition in April 2023.

3. Consular officers do keep historical records

A reader asks:
My status expired in 2018, so I had to apply for a dependent status. Later, I did not have a visa until my OPT expired. After moving to Canada, I was asked about the L visa, but I did not expect it and was not prepared, which led to the rejection of my visa in 2021. Now, more than a year has passed, and GK5 has passed. I want to try to go back with an L visa. However, because the L visa is valid for 5 years, the L visa I-797 used is still the same. I heard that in the United States, visa interviewers will not dig up such historical records after 5 years. Is this true? The last time my visa was rejected in 2021, I was asked about the rejection on the new DS160. Do I need to fill in the reason for the rejection directly? Is the specific explanation 212A6C? Or can it be said that I was not well prepared before?

Mr. Alan Lee Esq. answers,
Consular officers do keep historical records, and it is likely that your prior refusal will be on the database. You have said that the reason for rejection in the past was 212 A6C. That ground is inadmissibility for fraud or misrepresentation in attempting to enter the US. On the DS-160 nonimmigrant application form, there are two questions relevant to your situation – the first is, “Have you ever been refused a US visa, been refused admission to the United States, or withdrawn your application for admission at the point of entry? If yes, explain. When? Where? What type of visa?” and “Have you ever sought to obtain or assist others to obtain a visa, entry into the United States, or any other United States immigration benefit by fraud or willful misrepresentation or other unlawful means?”  To the first question, you would have to answer in the affirmative and answer the questions and state the circumstances that you believe are in your favor. If you believe that your explanation is thoroughly sufficient to explain that you did not commit fraud or misrepresentation, you may decide to answer “no” to the second question. The consular officer, however, should have a full understanding of the circumstances surrounding the prior denial when he or she finishes reading the DS-160 application.

4. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent

A reader asks:
I applied for EB-1B, and the waiting period has come. I just got my green card. My spouse and I submitted I-485, but it is still CRP. I would like to ask, is the subsequent review of the spouse’s status completely independent or will it have a certain impact?

Mr. Alan Lee Esq. answers,
A dependent spouse’s I-485 application is generally dependent upon the eligibility of the principal applicant, you. You have already received your green card, so that means that your principal case has been deemed approvable. The dependent will usually be approved if USCIS believes that the relationship is bona fide and that the dependent is not inadmissible to the US. Where marriages are concerned, USCIS may look into the marital relationship, especially if the couple married close to the time of submitting the I-485 applications. USCIS may also be conducting background clearances, and these are sometimes delayed. The agency wants to ascertain that applicants are not terrorists, have no criminal records or non-excludable criminal records, etc., before granting permanent residence. Dependents may also have had their own immigration file records in the past that USCIS will have to review before making a decision. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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