Category: Q&A

1. USCIS expects to see the last 3 payslips to determine the start of the 60-day grace period

A reader asks:
I have been in this company for three years. I had to wait for a year before my green card process could begin. It took 10 months to prepare and submit the PERM application, which was submitted in November 2023 while my H-1B extension was still pending. The company notified me on the same day that my separation date was immediately effective, but they would keep me on the payroll for 5 months. However, this does not help me continue my green card application. I consulted the company’s lawyer and asked if they could help push through my I-140. The lawyer said that it depends on the company’s decision and the chief officer. I hope the company will extend my last working day and assist with the I-140 process. I have scheduled a meeting with them, but my expectations are low.

The lawyer said that my grace period actually started on my termination date, but neither the lawyer nor the company will report to USCIS. He implied that I could use the payroll paycheck date to transfer my H-1B, but I don’t want to take the risk, so I plan to switch to a B-2 visa in a month. I just spoke with the chief officer and learned that the company will not support my I-140 application. I’m now preparing to find a new job. The lawyer mentioned that my grace period starts from the day I was terminated, but my H-1B expired in December last year, and the extension is still pending. Does that mean my grace period actually started from December last year?

Alan Lee, Esq. answers,
During the time that a H-1B extension application is pending, the beneficiary still considered in H-1B status as long as he or she is still with the company. In your situation where the company has separated you during the time of extension, you are given 60 days grace period to find and file a new H-1B petition or take any other action to keep legal status or leave the country. For a new employer to file a H-1B transfer petition or for you to file for a B-2 visa status, USCIS expects see the last 2-3 payslips to determine the start of the 60-day grace period.

2. What to do if I haven’t received the filing receipt for over 1 month?

A reader asks:
I submitted I-485, and now I haven’t received the receipt. It has been a whole month, and the immigration office has not deducted any money, and I have not received a receipt; there is only a confirmation from UPS, and the location is the Chicago office. What should I do?

Alan Lee, Esq. answers,
If your case was delivered to the Chicago office, which is a lockbox, you can attempt to contact USCIS at lockboxsupport@uscis.dhs.gov and perhaps be able to obtain some idea of what has happened to your case. You may wish to initially check whether you sent the package to the correct address. If it is only one month, you may wish to wait another one-two weeks to take into account workload spikes, especially around the holidays.

1. A request for porting is conditioned upon the I-140 petition being approved and 180 days have passed

A reader asks:
I applied for a professional-based visa to avoid the EB-3 visa because Schedule B is open. I submitted my I-485 and all the necessary documents (including the medical examination report) in early October. However, the Schedule A is still four to five months away. I got my fingerprints taken in early November and quickly received my Combo card. I’m now looking to change jobs after Christmas. I heard there’s a 180-day rule, meaning I have to wait 180 days after submitting my I-485 before I can change jobs. Can I change jobs without waiting 180 days in my current situation? Will the USCIS ask for a paycheck to verify that I’ve been with the company for 180 days since submitting my I-485?

Alan Lee Esq. answers:

Changing jobs now instead of waiting for 180 days brings risk. Your new employer may, by company policy, disclose your start date. A request for porting is conditioned upon the I-140 petition being approved and 180 days passing before changing over to the new employer. There is a possibility that USCIS will not notice and approve the porting under the scenario that you present, but we do not recommend it. USCIS to our knowledge does not normally require payslips in a porting situation.

2. The criteria for NIW is that the person’s proposed endeavor has both substantial merit and national importance

A reader asks:
In June 2024, I filed my NIW I-140 in the US. After graduation, I applied for jobs everywhere, but only received an offer from one company in China. If I return to China to work, will this affect my future I-485 application?

Alan Lee Esq. answers:
The criteria for NIW (National Interest Waiver) is that the person’s proposed endeavor has both substantial merit and national importance; the person is well-positioned to advance the proposed endeavor: an on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. Since the purpose of NIW is to benefit the United States, you may run into questions on a future I-485 application where your working history does not appear to align with the promises that you are making to this country.

1. If you have already applied for an immigrant visa petition, it may prove difficult for an American consulate or embassy to issue you the F-1 visa

A reader asks:
I’m currently working full-time in the US on an L-1 visa and haven’t received an H-1B lottery yet. I’m worried about being laid off, so I want to prepare early. Since my L-1 visa is tied to my employer, I’ll need a new status if I leave. I’m thinking of applying for an F-1 visa and continuing full-time work with a day-one CPT. However, I applied for a NIW visa in early July 2024 and am still awaiting a decision, expected in April or May 2025.

If I receive an I-140, can I still apply for an F-1 visa to obtain a day-one CPT? As I understand it, submitting a NIW visa indicates an intent to immigrate, which doesn’t seem to be permitted on an F-1 visa. However, some say this isn’t a big deal, as the F-1 visa is issued by the embassy and has nothing to do with USCIS. Even if the embassy sees my I-140 when reviewing my F-1 visa, the backlog is so far away that it’s unlikely I can file an I-485 while my F-1 visa is valid. Are there any other ways to work in the US? For example, changing status within the country (from L-1 to I-20). This way, although I can’t leave the country, I can still work.

Alan Lee Esq. answers:
If you are considering changing to F-1 and using Day 1CPT to continue working full time, please note that USCIS considers some institutions to be abusing the privilege of CPT, especially where Day 1 CPT is concerned. There is a chance that taking such without sufficient reasons for the school to issue it may be cause for later immigration problems. If you have already applied for an immigrant visa petition such as through NIW, it may prove difficult for an American consulate or embassy to issue you the F-1 visa as you may not meet the test of nonimmigrant intent. In our experience, we have had more success with changes of status through USCIS as that agency will usually give an opportunity to you to demonstrate your nonimmigrant intent if your case is flagged. You have touched on this in your last questions and come to the conclusion that you could not leave the country but could continue working – a reasonable assumption on the first but a presumption on the second as to whether you can continue working given the above caution on Day 1 CPT.

1. It’s difficult to apply for adjustment of status if the employee is no longer affiliated with his former company.

A reader asks:
I currently have an approved I-140, which won’t be 180 days until February 2026. However, my current company (Company A) operates in an extremely toxic environment. I haven’t been home to see my parents in years, so I plan to resign from my current company and leave the country. 2026 will be my fifth year on the H-1B. I’d like to return to the US to find a job after the market eases. I have a question:

If I resign and leave the US before my sixth year on the H-1B, will I need to re-enter the lottery and obtain a new H-1B visa if I find a job upon returning to the US? If I find company B willing to sponsor me in the future, when the current application is in the queue, my I-140 from company A cannot be used to apply for an I-485. Can it be used to extend my current H-1B visa? There’s a theory that if I leave the US for more than a year, I need to re-draw the H-1B visa. Is this necessary? How is the grace period calculated for resignation? If I change to another status (F or B) in the meantime, does that immediately end my grace period?

Alan Lee Esq. answers:
After resignation, the grace period is 60 days to find another H-1B position and file a new petition, change status, or leave the country. Given the time would take to change status to F-1 or B, the grace period would have ended. If you leave the country before completing six years on the H-1B, you have the balance of time in the event that you find another employer to sponsor you. If the I-140 approval is not timely revoked by the employer and there was no basis to revoke by USCIS for fraud or misrepresentation or error, it can be used for a one-year extension when the priority date becomes current. However, you must file the I-485 adjustment of status application within the one-year period in which the priority date becomes current. If you fail to file within that year, you may become ineligible for further extensions unless you can show that the delay was due to circumstances beyond your control. In the situation that you have described, it appears that you are not eligible for adjustment of status as you are no longer with company A.

2. To change the priority date on your I-140 petition, please contact the USCIS

A reader asks:
My EB-1 application, filed this month, was unexpectedly approved. I was pleasantly surprised to find that the priority date didn’t link it to my NIW from three years ago. I heard I can call USCIS and have it linked. How do I do this? Otherwise, I’ll have to wait forever to file my I-485.

Alan Lee Esq answers,
I am not aware that USCIS has a service under which it will change the priority date of the I-140 approval if it was not initially requested in the I-140 petition. Given the seriousness of not being allowed to transfer over the old priority date and the impracticality of filing a new I-140 petition, you or your attorney would hopefully be able to contact USCIS through its contact center at 1-800-375-5283 and have a sympathetic officer and supervisor assist you with the situation.

1. Chinese J holders are no longer subject to a two-year foreign residence requirement

A reader asks:
I am currently in China, and my I-140 application has been approved with IVP selected. So, can I apply for a J-1 visa to go to the United States for a postdoc in advance while waiting for the priority date? When my priority date becomes current, can I then adjust my status to I-485? The maximum validity period of the DS-2019 for J-1 is 5 years. If I apply for a J-1 waiver early, but my priority date has not yet become current when my J-1 expires, will I have to return to my home country to continue waiting?

Alan Lee, Esq. answers,
While you can apply for a J-1 visa, please note that it is discretionary on the part of the American consulate and that your having an approved I-140 petition may cause concern as to whether you have the requisite nonimmigrant intent. If you take this route, please ensure that you put down on the visa application that you have applied for an immigrant visa petition. Not doing so might lead to a finding of misrepresentation on your part. Whether you have to apply for a J waiver depends upon whether you are subject – as of this year, Chinese J holders are no longer subject to a two-year foreign residence requirement by virtue of the skills list. If your priority date has not yet become current by the expiration date of your J-1, you would have to return home or stay in the US under some other type of visa status.

2. Would applying for CPT negatively impact the I-485 approval?

A reader asks:
My F-1 husband filed an I-485 in March. I haven’t received the biometrics appointment yet, let alone the combo card. I have an internship starting in October. Can I apply for CPT for the internship? Would applying for CPT negatively impact the I-485 approval?

Alan Lee Esq. answers:
I do not see that applying for CPT which is basically a work request would negatively impact the I-485 approval so long as the job is integral to the degree and authorized on the new I-20. DSO authorized CPT is governed by SEVIS, not USCIS, and there does not appear to be a bar on CPT related to a pending adjustment case.

1. A change of nationality generally will not affect green card processing

A reader asks:
I applied for an EB-1A visa and is in the process. Currently, my family is in Europe awaiting for the priority date. Our NVC documents have been completed. Originally, my plan was for my children and I to change our nationality to the country where we live in Europe after I get its green card. My husband has other considerations and is holding off on changing his nationality for now. I’m not sure if this will affect my US green card application.

I’ve heard that the US only recognizes dual citizenship if the final nationality is US. I’m not sure if there are any other similar regulations during the green card period. Given the current backlog, which could last for the next two to three years, I’m considering renewing my nationality during the waiting of priority date. If so, do I need to withdraw the processed documents, renew the DS-260, and then resubmit it? How long would this take? What potential problems might arise from this process?

Alan Lee Esq. answers:
Change of nationality generally will not affect green card processing, as the determination of priority dates goes by country of birth and not country of nationality. The US recognizes dual nationality from a number of countries, mainly on a reciprocal basis and that we are friendly with those countries. Change of nationality and passport are considered significant factors in consular processing, and the DS-260 should be updated. Updating should be a fairly quick process.

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.