Category: Q&A

1. Encouraging organizations to begin PERM labor certification applications at latest when H-1B holders have finished the first three years

A reader asks：
I’m currently in my third year on an H-1B. My boss supports my green card application, but I’m a junior employee and haven’t been promoted yet. Our company’s policy is for managers to apply for JD Manager status. I’ve applied three times, but the immigration team rejected each application, saying it wouldn’t be approved. After some research, I think my situation is more like a YOE0, as I only have about a year of internship experience. What should I do? Should I consider changing jobs? Or should I talk to my boss again? Are there any other options? My current job is relatively stable, and my boss treats me very well. The only downside is the location. This is a rural area, and I’m feeling a bit depressed living here. I work as a model development analyst. I’m a bit unsure what to do.

Alan Lee Esq. answers:
As you are currently in your third year of H-1B, you would already have had two years of prior experience either within the company or outside. The manager can perhaps consider the company requirements for the position taking a harder look at your experience and other qualifications, or the company could perhaps consider you for a future position in which your current experience would be relevant. Your company appears to have a set procedure for beginning labor certification applications, which is commendable. You should continue to work with your manager as it does not appear hopeless at this time from the facts as you have given them. If you do decide to switch jobs, you may wish to confirm with a subsequent employer that it will start your PERM application soon since the process -from putting together job description and requirements, going through the prevailing wage determination, recruitment, and running time of labor certification applications – is currently very long. We ourselves are encouraging organizations to begin PERM labor certification applications at latest when H-1B holders have finished the first three years of the usual six-year period of time for H-1B’s, if not earlier.

1. EB-1A was approved; there are options for your spouse to maintain legal status

A reader asks:
My EB-1 has been approved, and I plan to file my I-485 next month. I have a NIW visa cutoff for December 2022, so I can file. My wife just quit her job a few days ago. I was thinking that since my I-140 was still a long way off, I’d switch from H-1B to H-4 and take a break, then look for another job after getting my Combo EAD. But then, my EB-1A was approved, and my wife has officially submitted her resignation to her employer, so she can’t continue working and maintain her H-1B status. However, since I have almost all the documents ready, there should be no problem filing the I-485 within the next two months. If my wife’s H-1B grace period is still in effect, does she need to first file an H-1B to H-4 conversion and then file an I-485?

Alan Lee Esq. answers:
There appear to be three situations for your wife. The question is which one she wants to take, and this may have to do with gambling on the experience of the USCIS adjudicating officer.
The one option that everyone understands is filing to change status from H-1B to H-4 since a timely request to change status preserves nonimmigrant status. The second option to file the I-485s  within the 60 day grace period allowed for individuals on H-1B who leave or lose their positions. This requires more understanding from an immigration officer that the H-1B holder is legally in status during the 60 day grace period. The third option is to file outside the 60 day grace period relying on an immigration provision, §245K, which allows up to 180 days for a person not in status to still be able to file adjustment of status applications so long as the application is employment-based and the individual entered the US with a visa. This requires a little more understanding from an immigration officer.

2. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa

A reader asks:
I’m a SWE2 at a Chinese company in H-1B status. I received notification this week that my I-140 has been approved. Over the past year, layoffs at various companies and the slow progress of my team’s projects have left me feeling extremely exhausted and often sleepless. I’m desperate for some rest. My family has been asking me to go back to visit my elderly family, so I’m considering returning to China. I’m thinking of taking this opportunity to return. I know that if I get my I-140 now, the green card wait time will be many years. Can I return to my home country now, then use my H-1B to find a job in the US in a few years, and then return? I can skip the lottery and apply for a new perm and I-140, ensuring my status is complete by the time the wait time comes. Is this feasible? Another question: My H-1B expires in September of this year, and my company has already applied for an extension, effective in September. How will this affect my return to my home country?

Alan Lee Esq answers,
Under your first scenario of going back to your home country and trying to come back to the US after a few years, you should be able to use the time that you have left under the H-1B to find a US job and return. You would avoid the visa lottery, and you may be able to have another company start up your PERM and I-140 processes picking up your priority date along the way. I assume that your concern about the H-1B extension goes to your other scenario of only returning to your home country for a short break and some travel with your parents and then coming back. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa.

1. In applying for the green card, you should disclose all nationalities.

A reader asks:
I previously worked in Canada for a US company for a year, then came to the US as a Chinese national on L-1 status. I later became a Canadian citizen (but would like to retain my Chinese identity). My company is applying for a green card for me, but I have a few questions:

1. Do I need to fill out the citizenship form on the green card application? Do I need to add that I’m a Canadian citizen? My US visa is for my Chinese passport, and currently only states “China.”
2. If I truthfully state that I hold both Chinese and Canadian passports, can I apply for a green card using my Canadian passport? However, I’m a Chinese national in the US with L-1 status. If I disclose my Canadian status, will my Chinese L-1 status still be valid in the US?
3. I’m working and living in the US with an L-1 visa (Chinese passport), but need to use my Canadian passport when returning to Canada. What should I do about round-trip travel between the US and Canada? Do they use their Chinese passport for entry and exit in the US, and their Canadian passport for entry and exit in Canada? However, sometimes flights check for valid visas when picking up their tickets. If I don’t have a Canadian visa or green card, can I just show my Canadian passport? However, the Canadian passport is not the same Chinese passport I used to purchase the ticket.
4. Can I travel from the US to other Canadian visa-free countries using my Canadian passport without a visa? That way, there would be no exit record from my Chinese passport in the US on my return trip. Is this possible?
5. Can I use only my Chinese passport to travel back to China from the US in the future?

Alan Lee Esq. answers:
While not claiming to know any immigration laws other than the US, it is my understanding is that China does not allow dual citizenship. It would appear that your questions concern  attempting to dance between passport presentations to one country or another. In applying for the green card, you should disclose all nationalities. The green card application is tied to your meeting the requirements for the green card, not to your passport. Revealing your Canadian citizenship should not affect your L-1 status as the L-1 depends upon your continuing to meet requirements of L-1 eligibility. On your questions 3-5 concerning which passport to use for entry and exit or to go to visa free countries or China, I cannot claim to know the answers as I am not aware of the immigration rules of Canada, visa free countries, or China. I would venture guesses that for Canada and visa waiver countries, you can use the Canadian passport although you should carry both and for China, it only recognizes one passport. Perhaps other legal counsel dealing in international law could answer your questions with more certainty, or you could contact consulates or embassies of the countries to which you wish to travel. Good luck.

2. You should obtain another position in the same or similar occupation prior to the adjudication of your I-485 application.

A reader asks:
I was currently an EB-3 applicant last year, and a major company filed an I-485. I had my fingerprints taken in September 2023 and received my combo card in mid-2024. I’ve been waiting about 450 days for my green card. In October 2024, I changed jobs to a Chinese company and applied for an H-1B transfer. I’m still on H-1B status. However, the new company hasn’t filed an I-485j yet. Your attorney must file it when you have a green card interview; don’t file it if you don’t have one. A week ago, I was unfortunately laid off and am now in the H-1B grace period. I have a combo card, so I’m not worried about legal stay in the US, but I’m concerned about green card approval. Will the company that laid me off not file an I-485j for me affect my I-485 approval? It’s my understanding that if I haven’t found a job after 60 days, my combo card will automatically be used to maintain my US status. Does that mean I don’t have to worry about being unemployed after 60 days? I just need to make sure my next company files an I-485j for me during the green card interview.

Alan Lee Esq. answers:
As you have maintained status at all times and are now in the H-1B grace period, your status is still good to file for a further H-1B with another employer at this time or to continue employment on your combo card assuming that it is not expired or expiring. In your situation, you do not have to worry about the fact that your last employment did not file for job porting under I-485J. You should ensure, however, that you obtain another position in the same or similar occupation prior to the adjudication of your I-485 application. You should not depend upon waiting until you receive a notice of interview as USCIS may make a decision on your employment-based case without giving you an interview.

3. After activating the Combo EAD card, you would technically have no status if your I-485 application is denied.

A reader asks:
After activating the Combo EAD card and starting to use it for work, if my I-485 is later rejected, can I still switch back to H-1B? I know this question has been asked many times, but the answers seem to vary. How do I do this specifically?

Alan Lee Esq. answers:
If relying upon only the combo card, you would technically have no status if your I-485 application is denied. In order for you to obtain H-1B status again, you would have to leave the US after H-1B approval (prior to 180 days of unlawful presence after the denial) and reenter the country under H-1B status. H-1B is a dual intent visa, and so the fact that you have applied for the I485 previously should not factor into the question of admissibility. What may be considered are that the I-485 was denied and the reason(s) behind the denial.

1. Where the job is lost during the I-485 process, USCIS allows job portability for a same or similar position

A reader asks:
I’m about to lose my job, but I have absolutely no motivation to look for another one. If I understand correctly, you still need a job similar to your previous one while your I-485 is pending. Do you need to be employed or at least have an offer and have submitted an I-485j when your green card is approved? Are there any location, salary, or start date requirements for the new job? How can I get a green card with minimal effort?

Alan Lee Esq. answers:
It is requisite for an applicant for I-485 through PERM sponsorship to have the job offer available from the sponsoring employer at the time that permanent residence is approved. The applicant should then continue to work for the sponsoring employer for some period of time after permanent residence is approved to show continued commitment to the job. Where the job is lost during the I-485 process, USCIS allows job portability where the applicant is able to locate a same or similar full-time position. This occurs where the I-140 petition has been approved and I-485 has been pending for at least 180 days. You should find a new opportunity prior to the adjudication of the I-485, not after. I cannot tell you how to do this with minimal effort. Location is not a concern for job portability although salary may be taken into consideration in judging whether the new position as in a same or similar occupation. The start date is best to begin before the I-485 adjudication, assuming that you have employment authorization to take up the position – otherwise at the time that the permanent residence is approved.

2. The company was sold, PERM will most likely have to be refiled

A reader asks:
My company’s office (a small division of the main company) is being sold, but I’m staying with the main company with the same role and job duties, although I will likely be fully remote since there will no longer be a physical worksite. My residence is in the same metropolitan statistical area (MSA) as the current office, and my PERM is still processing. Do I need to restart the PERM process under these circumstances?

Alan Lee Esq answers,
I believe that given the circumstances as you have presented them, the PERM will most likely have to be refiled. The rule of thumb is that a PERM application cannot be changed once it has been submitted. The first issue has to do with the sponsoring organization. If the employer as listed on the PERM application was the small company which is being sold and not the parent, there is an incongruity as to the sponsor that cannot be fixed unless the acquiring company adheres to and satisfies succession in interest rules. If the employer is listed on the application was the parent company, this problem could be avoided. The second issue would appear to be the worksite becoming fully remote. That in itself is a change of circumstance if the recruitment specifically designated a worksite. In that situation, the description of the job changes as the position would become more attractive to US workers and opens up the recruitment to anyone in other US states who may be interested in working from home even if the company itself is in a faraway state.

3. If your case is exceeding USCIS published processing times, you can check online

A reader asks:
I applied for EB-1A for more than half a year, and no one has contacted me. Could there be an issue with my application? I feel like my case was forgotten. Should I email the MDPI to ask why it is still pending and hasn’t even been denied?

Alan Lee Esq answers,
I assume by your question that you are complaining about not receiving a decision, as you would like to communicate with USCIS to ask why it is still pending and why you have not even received a rejection notice. That is because the processing time for EB-1A exceeds six months for the service centers adjudicating this category of cases. There are two – the Nebraska Service Center is taking 14 months to reach 80% of its filed EB-1A applications while the Texas Service Center is at 15 months. https://egov.uscis.gov/processing-times/

In the event that you believe in the future that the service center handling your case is exceeding USCIS published processing times, you can check the processing times through the above link, enter your case type and your USCIS office, and the website will inform you of the normal processing times for your type of application. You can also enter the date in which your application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times.
If it is outside normal processing times, then you may file an eRequest (https://egov.uscis.gov/e-request/Intro.do ) or chat with EMMA (https://www.uscis.gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative.

4. The NVC generally assigns the interview location to the consulate requested on the immigrant petition

A reader asks:
My talent visa application has been approved, and I now have temporary status in Hong Kong. At the same time, I applied for U.S. immigration. If my priority date becomes current, can I schedule a visa interview at the U.S. consulate in Hong Kong?

Alan Lee, Esq. answers:
The NVC generally assigns the interview location to the consulate requested on the immigrant petition, e.g. I-130 or I-140. If you obtain temporary permission to reside in Hong Kong, you should normally be allowed to have your interview in Hong Kong. You can request in writing to the NVC to have the site of your interview changed to Hong Kong with proof of your ability to remain in Hong Kong if Hong Kong is not already the designated consulate.

1. Can I apply for an O-1 visa to start working in the U.S. if my EB-1A is approved

A reader asks:
We are in the UK and applied for EB-1A, with mainland China as our country of birth. We heard the wait time might be up to 5 years, which is daunting.  If EB-1A is approved, is there any way to enter the US sooner without waiting for the priority date? Could I apply for an O-1 visa to start working in the U.S. and then wait for the priority date while in the United States? Would getting an EB-1A make the O-1 application easier?

Alan Lee Esq answers,
An O-1 is a possibility to enter the US to work first and then wait for the priority date to become current. Although the O-1 visa is not strictly dual intent (allowing both immigrant and nonimmigrant intents), it falls within a gray area in which we have seen many visas issued at the US consulates even though immigrant petitions have been filed or approved. Kindly note that although EB-1A can be done through self-sponsorship, the O-1 require some form of organization sponsorship. The rules appear to be loosely interpreted currently on organization sponsorship even when the alien essentially owns the company doing the sponsorship.

1. I am self-employed during my OPT period. Will this affect my I-485?

A reader asks:
Some articles mention that if one has fewer than 180 days of unauthorized work after the last U.S. entry, they can still adjust status under 245(k). But in my case, I was on OPT and self-employed, which led to unauthorized employment. I later left the country, and when applying for H-1B, I marked “No” on the DS-160 question about unauthorized work and did not list that experience. The H-1B got approved. Now, when I apply for EB-2, if I disclose the unauthorized employment, will this trigger a 212 fraud issue? Is the risk high? Am I basically out of options?

Alan Lee, Esq. answers:
The DS 160 form does not contain a question on unauthorized employment. It only has a question, “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official, or otherwise violated the terms of a U.S. visa?” Thus it does not appear that you made a specific misrepresentation to the question of unauthorized employment, especially if you doubted that your self-employment may have counted as unauthorized work at the time of making your visa application. Fraud or misrepresentation also requires an intentional misrepresentation of the truth. In this case, such is doubtful given that there is not a specific question on unauthorized employment on the DS-160 form. You are correct that §245K can forgive unauthorized work under 180 days, but has no impact on questions concerning fraud or misrepresentation. I doubt that the question of misrepresentation on your self-employment during OPT will be a deciding factor in your adjustment of status application.

1. Under most circumstances, a new PERM filing must be made when the position changes

A reader asks:
I am on an H-1B visa. I feel that I have been in a rut in my current position for many years and have reached my career ceiling. I want to switch to a different career path for a fresh start. My company now has an open position at the same level as my current one but with different job responsibilities. My current role involves managing a department at the headquarters and its subordinate branches. The open position would be as the general manager of a subsidiary, overseeing all operations and department managers there, but only a small portion (20%) aligns with my current job responsibilities. I have an MBA and feel qualified for this role, which seems like a good opportunity. However, my green card application PERM was filed based on my current position. If I switch to this internal role, which is similar but not identical to my PERM application, would I need to refile for PERM?

Alan Lee Esq. answers,
Under most circumstances, a new PERM filing must be made when the position changes. The exception is when the I-140 petition is approved and circumstances have changed after the I-485 adjustment of status application has been filed and 180 days have elapsed since that time. If the circumstance is a change of employment to a position which is in the same or similar occupation, both the PERM and I-140 petition can be kept and the adjustment of status application continue. That is the AC-21 portability law allowing a “same or similar” job switch. If that fits your situation, you may be able to port your case as both positions as described appear to be managerial, and it would be up to the company and its representative to bring out the most convincing arguments to USCIS that the job is in a similar occupation perhaps by arguing that the roles are in the same occupational classification; or that job duties and the SOC code are similar, etc.

2. It is not necessary after extending the H-1B status for you to leave the US and obtain a visa in your passport

A reader asks:
I applied for EB-3 professional immigration. After submitting I-485, the priority date retrogressed, so EB3 is no longer current. My Priority Date is May 2021. The current H-1B stamp will expire in three months. Should I go to Canada or somewhere like that to renew it early next year?

Alan Lee Esq. answers,
It is not necessary after extending the H-1B status for you to leave the US and obtain the visa in the passport. The visa is only for travel purposes. Alternatively, you could also file for advance parole if you need to travel (currently takes about 6+ months to process) since you have already filed for adjustment of status to permanent residence. If you do decide that you wish to travel under H-1B status, you should check the consular post that you wish to visit to see whether they will entertain third country nationals at the US consular post, and make sure that you have all your proper documentation according to the consular checklist. Please note that unless you have advance parole, you would not be allowed to return to the US without obtaining the H-1B visa in your passport.

1. Filing fee payment was processed. You can email USCIS if no receipt after 30 calendar days

A reader asks:
I recently applied for NIW from abroad. I can see that the $700 fee has been deducted, but I still haven’t received my receipt number. Today I asked Emma, provided my personal info, and they couldn’t locate my case—even though it’s been over a week since the payment was processed. How long does it usually take before Emma can provide the receipt number?

 Alan Lee, Esq. answers:
A lockbox can take 10–30 calendar days to cash the payment, assign the IOE/LIN/SRC/WAC receipt number, and push it into USCIS systems that Emma reads. One week is early; check again after another week. If you still have nothing at 30 days, then you can email the lockbox support address on the filing location webpage.

2. For EB-1B, interviewers will ask about employment

A reader asks:
I applied for I-140 last September and it was approved, my priority date was in December, and I did fingerprints in February this year. I recently checked the status and saw that my case is now in the interview stage.  How should I prepare the materials for an EB-1B family interview? What questions are usually asked during the interview?

Alan Lee Esq. answers,
For EB-1B (outstanding professor or researcher), interviews are generally employment-focused but also confirm the legitimacy of family members included. Prepare:

• Employment documents: job offer letter confirming role, CV, portfolio if you have one, recent accomplishments.
• Evidence of accomplishments in your field – if portable, bring some originals.
• Family documents: marriage certificate, children’s birth certificates, photos, joint bank accounts, etc.

Interview questions may include:

• Details of your job and role
• Proof of bona fide marriage/family (if applicable)
• Memberships in organizations.
• Social media postings.
• All relevant questions on form DS-260.

Good luck with your interview.

 

1. You are applying for US immigration, which may be a bar to your utilizing the TN visa

A reader asks:
I came to the U.S. last year on an L-1 visa. Due to poor economic conditions, the company hasn’t started my PERM process, and I didn’t get picked in the H-1B lottery. The EB-2 queue is also very long. Even if I eventually get H-1B and PERM, getting the green card still seems far off. So I’m considering this: after filing I-140 (either via NIW or whenever the company files PERM), I might go work in Canada and get citizenship there during the green card wait. Later, I could return to the U.S. on a TN visa and complete the green card process—assuming I find a job in the U.S. again. Compared to staying in the U.S. to wait, what are the downsides of this plan?

Alan Lee, Esq. answers:
I assume from your fact situation that you are in the US under L-1B rather than L-1A, the latter of which would afford you faster processing time under the EB-1C category associated with intracompany transferee managers and executives. That being said, your plan has a drawback that TN is a visa requiring nonimmigrant intent. The fact that you are applying for US immigration may be a bar to your utilizing the TN visa. Better situations are perhaps either remaining in the US during the time of the PERM or NIW and associated waiting times or remaining in Canada until you can be finally interviewed at the American Consulate in Montréal for an immigrant visa. Being in Canada has advantages as many people consider Canadian permanent residence or citizenship to be a safety net and your income can continue during the time of your wait.

2. Utilizing a start-up company for a green card may be a risk

A reader asks:
I currently work for a mid-sized company on H-1B and will max out in about two years. I once tried for NIW but was unfortunately denied. I recently got a verbal offer from a startup, and they promised green card processing starting Day 1. I’m now struggling with the decision—should I take the offer?

Alan Lee, Esq. answers:
Some considerations for jumping could include the following:

1. Funding runway & survival odds of the start-up.
2. Job’s ability to pass PERM (duties, requirements, your qualifications, correct prevailing wage, ability-to-pay proofs, etc.).
3. Timing: you and the company may have a dilemma with only 24 months of H-1B time left, and it would require a concerted effort on the part of everyone to ensure that you do not run out of time before your 6-year H-1B max-out. With the time required to formulate the application along with periods of time to obtain a prevailing wage determination, and conduct the recruitment prior to filing, it is highly possible that without diligent attention to your case, you would not have the requisite 365 days after PERM filing to qualify for an extension of the H-1B visa.

You may wish to think about these factors to see whether the start-up fits before making the move.

3. Will using advance parole invalidate my H-1B?

A reader asks:
I’m currently in China, and my H-1B extension is under administrative processing (check). Can I just abandon waiting for the check and re-enter the U.S. using Advance Parole? Once in the U.S., can I continue working for my H-1B employer? Or will using AP invalidate my H-1B?

Alan Lee, Esq. answers:
If an H-1B holder like you travels to Canada for visa stamping and the case is placed on administrative hold, he or she would typically need to wait for the visa approval before reentering the U.S. However, as you have a pending adjustment of status application and an approved advance parole document, you may be able to abandon the visa stamping process and reenter the U.S. using advance parole instead.

Upon reentry with advance parole, you should be admitted as a parolee, rather than in H-1B status. This means according to legacy INS policy that you should be able to continue working in the U.S. but would no longer technically hold H-1B status unless you later file for an H-1B extension or transfer and have it approved.

4. One case should be withdrawn immediately when a green card is finally granted in either queue.

A reader asks:
In late October last year, my husband filed I-485, I-131, and I-765 and included me as a dependent. His PD is December 2017. This week, the immigration attorney from my company informed me that my case is now current as well. My PD is February 2018, and I can now file. I personally prefer to submit a separate I-485 and add my husband as a dependent as a backup. But is this allowed? Would doing this delay the progress of our green card applications?

Alan Lee, Esq. answers:
You may file your own I-485 as principal (PD 02/2018) even though you are already a derivative on your husband’s case. USCIS does not disallow multiple adjustment of status filings. Processing times are independent; one case should be withdrawn immediately when a green card is finally granted in either queue.

1. Promotion with a new job title may require redoing PERM

A reader asks:
My company offered me a promotion from Senior Internal Auditor to Internal Audit Manager. The new position is 90% the same with an added 10% managerial responsibility. However, the attorney says I’ll need to redo the PERM and advised against changing positions. They also said the Internal Audit Manager role wouldn’t qualify for a green card because it requires 5 years’ experience and a Master’s degree. The job title for the new PERM would have to be Financial Manager, but the prevailing wage for that is at least $160K, which the company won’t pay. So, the promotion seems unlikely. My PD is March 2021 and hasn’t moved for nearly a year. Do I really need to redo PERM to accept the promotion while waiting for my priority date?

Alan Lee, Esq. answers:
From your set of facts that your priority date is in March 2021 and complaint concerning the wait being a year without movement, I assume that you have not yet filed the I-485 application which requires that the priority date be current. In such situation, you are not entitled to keep the entire case under the rubric that the new job is in a “same or similar” occupation to the one in the certified PERM. At this stage, you would only be entitled to keep the priority date, and as your attorney points out, you would have to reapply for PERM with all of the cautions that he has given you. The law only allows the use of “same or similar occupation” where the I-140 petition has been approved and I-485 pending for six months – not for situations in which the circumstances have changed prior to the I-485 application being filed. In the event that you actually meet to allow the timeframe for use of “same or similar occupation” to port your case, the question is whether USCIS will see that this is the “same or similar occupation” in which it will consider and compare the two positions to see whether the new occupation qualifies or is materially different.

2. Your entry and stay would have to be consistent with your declared intent

A reader asks:
If I am denied an H-1B visa while applying from abroad and get laid off during the visa check process, can I still go to the US? Can I go to the US to find a job, or do I need to find a job from abroad and apply for a visa again?

Alan Lee Esq. answers:
Whether you are able to go to the US after being denied for H-1B visa and being laid off during the visa check process depends upon whether you already have a non-canceled US visa, or are able to obtain one, or if you are visa exempt (Canadian national or from a country under the visa waiver program – ESTA). Your entry and stay would have to be consistent with your declared intent. It is highly doubtful that you would be allowed to enter the country for purposes of looking for a job although USCIS will allow job hunting as a reason for obtaining a change of status after losing a H-1B position in the US. We seriously doubt that US consulates would give a B visa for that purpose and explaining that as the purpose for entry to a Customs and Border Protection (CBP) officer at the port of entry would likely invite problems.

3. NIW petition or O-1 visa?

A reader asks:
I have studied for a master’s degree in the United States, applied for OPT, and worked with an O visa, that is, I have used F, O, and B visas. Now, I have I-140 for NIW and want to return to the United States. I will definitely be in the United States in the future, and I’m thinking of going there early to apply for EB-1. Which one is more suitable, F-1 or O-1? Will I be refused a visa in this case?

Alan Lee Esq. Answers:
Since you’ve previously worked in the U.S. under an O visa and already filed a National Interest Waiver (NIW) petition (which shows immigrant intent), an O-1 visa is more aligned with your profile. F-1 is a nonimmigrant visa that requires proof of nonimmigrant intent, which conflicts with your I-140 filing and clear long-term immigration goal. Applying for an F-1 has a higher risk of rejection due to immigrant intent concerns. O-1 while not a dual intent visa (allowing both nonimmigrant and immigrant intents) lies in a gray area in which we have seen consular approvals even while I-140 petitions have been filed or approved. The issuance is within the discretion of consular officers.

4. The use of advance parole does not invalidate your H-1B status

A reader asks:
I’ve had my combo card for half a year now, and I plan to return to China for the Spring Festival early next year. I heard that if I re-enter the U.S. using the combo card, my H-1B will automatically become invalid. Should I apply for an H-1B visa and use that to return to the U.S. in order to maintain my status? I’ve never left the U.S. since getting my H-1B.

Alan Lee, Esq. answers:
Besides our general warning that nonimmigrants in the US should not take unnecessary trips outside the US because of the present political climate against immigration and nonimmigrant students by this administration, recent events have shown that Chinese students especially will be heavily vetted when they travel and reenter the country. To your specific question, the use of advance parole does not invalidate your H-1B status under legacy INS policy, and you are allowed to work for the H-1B employer and apply for extension of H-1B status when your present H-1B petition begins to expire.

5. USCIS often issues the I-693 (medical) RFE months early

A reader asks:
I originally applied under EB-2 but later downgraded to EB-3. I received my combo card in May. EB-3’s Chart A hasn’t become current yet—still about a month to go—but I received a request for a medical RFE by email. Does this mean the case is in the final review stage? If I submit the medicals, will I get the green card without waiting for Chart A? Or does it still need to be current to issue the card? I have a feeling Chart A might move forward in November.

Alan Lee, Esq. answers:
USCIS often issues the I-693 (medical) RFE months early so your case is “ready to go.” They still may not approve the I-485 until your Final-Action Date (Chart A) is current. You simply upload the sealed I-693 now and wait; if Chart A becomes current, your case can hopefully be approved quickly.