Category: Q&A

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.

Someone would rarely ask for another EAD when he/she has one valid until 2030

Reader asks:
My H-4 extension has been approved, but I received an RFE from USCIS for my H-4 EAD application. It says I already have an EAD valid until 2030 (this is the I-485 EAD I received a few weeks ago). They are asking why I am applying for another EAD (under the C29 H-4 category). I’m confused because the notice only gives me three options to choose from:

1. The EAD card was lost or damaged.
2. The information on the EAD card is incorrect and needs to be corrected;
3. I want to withdraw this current application because I already have a valid EAD.

So, does having an I-485 EAD mean I can no longer apply for an H-4 EAD extension? Or did USCIS make a mistake by not recognizing that these are two different types of EADs? I want to write a letter to explain that this application is for the H-4 EAD because I don’t intend to use the I-485 EAD for now, and I don’t want to choose any of the three listed options. Is it okay to respond like this?

Mr. Alan Lee, Esq. answers,
We have seen situations in which individuals have held 2 EADs, but it is rare that someone would ask for another EAD when he or she has one valid until 2030. USCIS may be concerned about security (whether someone other than you could somehow use one of the cards) or if there is any problem with your I-485 application. Your explanation is probably as good a reason as any at the present and it will be up to USCIS whether it will issue the H-4 EAD.

If I am not selected in the H-1B lottery, can I apply for PERM?

Reader asks:
My husband found a job and the company helped apply for H-1B, but he hasn’t been selected in the lottery for three rounds. We are feeling hopeless.  I suddenly thought – can we skip the H-1B lottery and have the company file a PERM instead, while staying in the U.S.? My husband was born in South Korea, so there should be no backlog. Can someone on TN status directly file a PERM?

Mr. Alan Lee, Esq. answers,
Unfortunately, H-1B registration is not guaranteed, and it is not unusual that individuals can go multiple rounds and years in the H-1B lottery without being selected. It is best that individuals keep trying as we have seen persons who have failed multiple times finally be selected. If selected, H-1B holders can remain in the US for up to six years and perhaps even longer under such status. On your specific questions, the company can file a PERM application while you and your husband are staying in the US. Your husband would have to maintain legal non-immigrant status if he wishes to adjust status at the end of the process. A person on TN status can directly file for PERM, but that individual should be aware that travel outside the US even to Canada during the process may give him problems on entry  as as there is stricter vetting at the borders and TN unlike H1B requires non-immigrant intent.

1. Labor certification applications can be restarted at any time.

A reader asks:
I was just informed today that the labor market test failed, so the PERM process will need to restart. I’ll talk to the lawyer later for more details.  What are the common reasons for failing the labor market test? If I need to restart, do I have to wait 6 to 12 months? I’ve been at this company since graduating from university, and previously relocated to Canada for a year before returning to the U.S. this year, so the work experience used for the PERM comes from my time at the Canadian office.

Could the failed labor market test be related to that work experience? Or could it be related to the job location? For example, are there differences between the San Francisco Bay Area and New York in terms of passing the labor market test? I’m considering moving to New York next year.  If the PERM location is New York, would it be easier to get approved?

Alan Lee, Esq. answers,
I am sorry to hear that your labor certification market test failed. Common reasons are typographical errors (the PERM process is pretty strict on errors on the forms); the recruitment may not have been done correctly; there may have been able, willing, qualified, and available US workers that the employer was not able to screen out for valid job related reasons; the applicant’s qualifications may not have matched what was required on the labor certification application, etc. Generally speaking, a labor certification application can be begun again immediately and you generally do not have to wait 6 months or more to begin a new labor certification. If the labor certification requirements were only matched by you in the same company’s Canadian operation, such could be a reason for having a problem with the Department of Labor as experience gained in the same company should be in a position which is substantially different from the position being offered. On the question of San Francisco or New York, the question may be whether there are more qualified candidates who would be interested in a job like yours in San Francisco or New York. That goes to advertising the position and the company screening the candidates. If the position is remote, the test would be national rather than in Just the local market.

2. The H-1B extension petition can only be filed within six months of its expiration date.

A reader asks:
I checked the Department of Labor website, and the average PERM wait time is 17 months, so it’s unlikely I’ll get it within 12 months. I have two questions:

1. Based on my situation, can I apply for a 1-year H-1B extension before it expires? If so, when is the earliest I can apply?
2. Can recapture time be filed separately, or must it be submitted along with the H-1B extension?

Can I file a new H-1B extension before May 2026? I was outside the U.S. for almost two months during my H-1B six-year period, so those two months should push my H-1B expiry date further. My H-1B expires in May 2026, and my PERM was filed in May 2025 (PD). Although my PERM was filed within 365 days before my H-1B maxes out, it was only by one day. I thought I could apply for a one-year extension in May 2026 just because the PERM was filed 365 days before. But when I reread the AC21 rule, it seems I might not be eligible until 365 days after the PERM filing date, which would be May 2026.  If that’s true, I am worried I might fall out of status. What should I do?

Alan Lee, Esq. answers,
Based on your situation, you can apply for a one-year H-1B extension before it expires. The beginning of the requested time must be after the labor certification application has gone 365 days. The H-1B extension petition can only be filed within six months of its expiration date. You can also file to recapture time separately, but that would have to be in the form of an H-1B extension petition.

3. EB-1A and EB-1B can be submitted simultaneously if the contents of one do not contradict the other

A reader asks:
I have prepared all the materials and drafted my I-140 petition letter for EB-1A. I originally wanted to go through my employer’s EB-1B petition, as it seemed more stable.  However, my company’s law firm is moving too slowly. Should I file EB-1A on my own first? Can EB-1A and EB-1B be filed simultaneously?

Alan Lee, Esq. answers,
Both EB-1A and EB-1B can be filed simultaneously, but the contents of one cannot contradict the other. If you wish to file the EB-1A petition on your own, please ensure that it will be consistent with the claims made on the EB-1B petition.

1. Under the new weighted wage rule, the chances of being selected are higher if you have a good wage offer

A reader asks:
I have applied for the H-1B visa three times and haven’t been selected. This is my fourth attempt. I have been in the United States for 6 years and have renewed my TN visa several times. Currently, I am a graduate student in Canada, so I can only apply for the undergraduate H-1B. However, I am studying OMSCS on weekends, and I can apply for the Master’s Cap next year. Last month, I just renewed my TN visa, and the next renewal is due at the end of 2028. This gives me three more chances in the H-1B lottery. I’d like to ask, what are the chances of me getting selected in the next three years? It would be really frustrating if I don’t get selected after six attempts.

Alan Lee, Esq. answers,
Under the new weighted wage rule, the chances of being selected are higher if you have a good wage offer. Assuming that the weighted wage rule is in place for this year’s H-1B Cap Registration, the higher the level of wage according to the Department of Labor (DOL) OES system, the better the chances are of being selected. DOL divides wages into four levels, and USCIS has conveniently taken advantage of the system in postulating that wages in level I get one ping-pong ball in the lottery, level II gets two balls, level III three balls, and level IV four balls. As you have been in the US for six years and renewed your TN Visa several times, you more than likely have a wage that fits within level III or level IV and have a good possibility of being selected.

2. Received an RFE for the medical report  

A reader asks:
I received an RFE today asking for my medical examination report.  However, I had already included the sealed medical report when I initially submitted my I-485 application. I called USCIS to inquire, but I was unable to reach a live agent. If my medical report was lost, can I ask my doctor to issue a new one?

Alan Lee, Esq. answers,
We find that in such situations where one cannot obtain an answer from USCIS, the best thing to do is to give another medical. If the medical is still valid, you can possibly go back to the physician or clinic and ask for a new medical report. You should ensure that you read all the rules concerning the validity of medicals before you take this route. Submission of an incorrect medical in response to a request for evidence would lead to denial.

1. The main benefit of switching from H-4 employment to H-1B is that you would not be dependent upon your spouse

A reader asks:
I graduated with a master’s program in 2022 but did not get selected in the 2023 and 2024 H-1B lotteries. Since I only have one chance left and my spouse’s I-140 has already been obtained, I applied for an H-4 and recently received the H-4 EAD. Unexpectedly, my company has now offered to sponsor my H-1B and asked if I am interested. This is a pleasant surprise. For two reasons, I want the company to sponsor me. First, the H-4 work authorization rules may change in the next four years; second, I am concerned about potential gaps when ending my H-4 status in 3 years.  I also have some concerns: If I don’t get selected in the 2025 H-1B lottery, will it affect my H-4 EAD? As long as my H-4 EAD remains valid, can I continue entering the lottery every year? Are there any other advantages or disadvantages of switching from H-4 to H-1B?

Alan Lee, Esq. answers,
If those are your concerns with work authorization under the H-4 category, they should be alleviated by the fact that the Supreme Court recently refused to take up a challenge to the DC circuit decision protecting the right of H-4 dependents to work where qualified under the regulation. Please note a recent change, however, that the automatic extension rule for timing filed EAD renewals has been eliminated and that extensions should be filed as soon as possible (up to 180 days before the expiration date). On your concerns, being selected in the H-1B lottery has no effect upon H-4 EAD; you can continue entering the lottery every year and it would be best to keep legal status to avoid the possible imposing of a $100,000 fee if you are selected and a company decides to sponsor you for the H-1B petition; and the main benefit of switching from H-4 employment to H-1B is that this would now be your case, and you would not be dependent upon your spouse to maintain his or her H-1B status.

2. EB-1A applications do not require Supplement J form

A reader asks:
I filed my I-485 in November 2025, based on an EB-1A approved I-140. However, I was laid off by my company at the end of November 2025. In the past month or so since the layoff, I’ve been looking for a job, but because I don’t have a green card or work permit, I haven’t made much progress. I was thinking of waiting until I get my green card or work permit before looking for a job again. However, today I received a Request for Initial Evidence letter from the USCIS, asking me to submit Form Supplement J. My lawyer previously said that EB-1A or NIW cases don’t require submitting Form Supplement J. I am currently unemployed, how should I handle this?

Alan Lee, Esq. answers,
Your attorney is correct that Supplement J is not required for EB-1A filings. You should follow your attorney’s advice. The language in the I-485J instructions is the following:

NOTE: Individuals seeking or granted a National Interest Waiver of the job offer requirement and individuals seeking or granted classification as an alien of extraordinary ability under INA section 203(b)(1)(A) do not need to file Supplement J. Because these employment-based immigrant visa categories are not tied to a specific job offer, individuals seeking or granted classification as an alien of extraordinary ability or seeking or granted a National Interest Waiver of the job offer requirement do not have to file Supplement J when filing Form I-485 or to request job portability under INA section 204(j).

3. Incorrect occupation code in the State of Occupation Certificate (SOC) is not a basis to revoke an I-140 approval

A reader asks:
I’m preparing to file my I-485, and I just discovered that my I-140 was approved several years ago. The SOC code on the I-140 approval notice is incorrect; it should be 151132, but the notice shows 111132. I don’t know if USCIS made a mistake or if the law firm made a mistake in the application. The worst part is, the SOC code 111132 doesn’t even exist. How should I proceed? If USCIS made the mistake, can I simultaneously file the I-485 and request a correction to the I-140? If the law firm made the mistake in the application, how should I handle this?

Alan Lee, Esq. answers,
I believe that if you have the I-797 approval sheet, you can move forward with filing the I-485. Whether it was your attorney’s or USCIS’s error with the SOC code, that would likely be considered an error of little consequence. If USCIS wanted to check the record, it could open theI-140 petition file and take whatever action that it deems appropriate. Having a wrong SOC code on the approval sheet is not a basis to revoke an I-140 approval.

4. Filing an NIW application is considered to have applied for an immigrant visa 

A reader asks:
I am a STEM PhD student, and my seniors are applying for NIW (National Interest Waiver) or EB-1 (Outstanding Talent) because they are about to graduate. Many people suggest that I use NIW to apply for a green card and occupy a priority date. I have published 7 articles and have dozens of citations, but my F-1 visa has expired, and I need to renew it abroad. My question: Will submitting an NIW application affect my future F-1 renewal or entry into the United States?

Alan Lee, Esq. answers,
A F-1 student visa applicant must show nonimmigrant intent and the DS-160 visa application form asks whether you have applied for an immigrant visa petition. You must answer in the affirmative if you have already applied for an NIW I-140 petition. Otherwise, you may be deemed to have committed fraud or misrepresentation in the application. A consular officer will consider the factor of your having applied for an immigrant visa petition in his or her decision of whether to allow renewal of the F-1 visa.

1. Can I transfer to Day 1 CPT when my H-1B expires?

A reader asks:
My H-1B expires in September this year, and my company insists on starting the PERM application in the second half of this year. I’d be lucky to even get a PWD before it expires. In this situation, can I use Day 1 CPT to maintain my employment? If so, do I need to maintain CPT until the I-140 is approved, or until I get my green card?

Alan Lee, Esq. answers,
Yes, I agree that it would be very difficult for you to even get the prevailing wage determination by September if the company will not begin your PERM process until the second half of this year and your H-1B will be expiring in September (I assume that the expiration that you are talking about is for the six year limit on H-1B’s). For you to use Day One CPT, you would first have to change to F-1 student. You should also be aware that USCIS generally frowns on the practice and may give problems to your case in the future if you move in the direction, especially if your intended schooling is on the same level as your present degree. On your other question, you may hopefully be able to change back to H-1B when your labor certification application has been pending for one year or the I-140 petition is approved.

2. The I-140 petition must be filed within 180 days of PERM approval.

A reader asks:
My initial understanding was that H-1B visas could be renewed indefinitely under the following three circumstances: If a 1-year or 3-year PERM application is submitted and not approved after one year, it can be renewed for one year. After I-140 approval, it can be renewed for three years. However, I consulted a lawyer today, and she said she had never heard of the first situation. What’s going on? They handle all EB cases at their law firm, so they shouldn’t be unaware of this, right? Also, if the PERM is approved, but the I-140 hasn’t been filed yet, can I still renew my H-1B?

Alan Lee, Esq. answers,
Perhaps you did not express yourself clearly to the attorney, but you are correct that under AC- 21, a H-1B can be extended past the normal six year period of time if a labor certification has been going on for a year in which case the H-1B can be extended for one year. Where the I-140 has been approved, a three year extension can be requested so long as the priority date is not current. To your question of whether you can still extend the H-1B if the PERM is approved but the I-140 not yet filed, such can be done as long as 365 days have passed the PERM was filed. Kindly remember that the I-140 petition must be filed within 180 days of PERM approval.

1. Whether adding a derivative beneficiary will slow down green card processing timeline？

A reader asks:
I submitted I-485 a year ago and was RFE. In the meantime, I got married, and now I want to add my spouse to my I-485.  I have seen posts mentioning that this can be done either through the “follow-to-join” process or by adding a derivative beneficiary to your existing I-485 application. Which option is more reasonable?

My main concern is whether adding a derivative beneficiary will slow down my green card processing timeline. Will it take longer to approve my case if I add my spouse now? Will my spouse receive a green card later if we use the “follow-to-join” process?

Alan Lee, Esq. answers,
Follow to join is usually a process to allow the spouse to consular process his or her case overseas after the principal has received permanent residence. Adding your spouse to your I-485 means that your spouse will be filing an I-485 application on her own based upon your case. It is difficult to say what will happen to your case in terms of delay in that situation, but there is a possibility that USCIS may wish to request evidence or interview both of you to determine the bona fide nature of your marital relationship.

2. Being laid off does not necessarily invalidate an EB-1A visa.

A reader asks:
I have a feeling I might be laid off, so I want to prepare in advance. Last year, the company’s law firm applied for an EB-1A for me, but I got a Request for Evidence (RFE). USCIS accepted two of the supplementary documents. I submitted the required documents by the end of October last year. Last week, I asked about the case status, and the law firm said they are still working on it and plan to submit it by the end of this month. If I am laid off on February 10th and lose my company email, will my application still be valid? Can I use my personal email address to contact them?

Alan Lee, Esq. answers,
I assume that the company law firm will continue to work on and submit your RFE response on a timely basis. If you are laid off by the company, the validity of the EB-1A filing may depend upon whether you are both the petitioner and beneficiary, or whether the company put itself down as the petitioner. If the company is the petitioner, then your petition would be invalid unless the company still wishes to continue the sponsorship despite laying you off. The company at some point in the future would have to assert that it still has a permanent job available for you if you wish to continue to the immigrant visa or I-485 stage. If you are both petitioner and beneficiary, the case can continue. Whether you are able to stay in contact with the company law firm depends upon the arrangement between you and the company. Whether you can continue to receive updates on your case directly from USCIS depends upon whether you are listed as the petitioner. If so, USCIS will send you a separate notice.