Category: Q&A

1. Problems with dependent applicant can affect the principal applicant

A reader asks:
My spouse’s Chart A is current, so they can file an I-485 with their company. If I file my I-485 alongside with them, will my pending NIW I-140 affect either my spouse’s or my case? I’ve heard that if either the principal or the derivative has a pending I-140, there’s a high chance the case will go into a “black hole.” I am very worried. In this situation, what’s the best approach? Should I file my I-485 with my spouse while also applying for NIW premium processing? But I feel my case is weak, and will likely receive an RFE. I have two options:

1. File my I-485 with my spouse and withdraw my NIW I-140.
2. Apply for NIW premium processing, and if I get an RFE, withdraw my NIW, then file I-485 with with my spouse.

Which method is better?

Alan Lee Esq. answers,
USCIS likes to adjudicate principal and dependent I-485 applications together, and if there are questions concerning a dependent, there is a chance that the principal’s application will be held up while USCIS does a file transfer for the dependent’s file and examines it for questions of inadmissibility or discrepancies with the I-485 filing. It is up to you as to whether to file and withdraw or withdraw after premium processing if there is an RFE and then file the I-485. If you believe that your case is weak, your first option may be the better one, but that of course is up to you.

2. Holding a valid F-1 visa increases the chances of returning to the U.S.

A reader asks:
I applied for OPT and during this period I also applied for a green card.  My current visa status is F-1. Before I get my I-140 approved can I return to my home country?

Alan Lee Esq. answers,
We give a general caution to nonimmigrants who wish to travel overseas that Customs and Border Protection (CBP) has been doing much heavier vetting of applicants for admission since Mr. Trump became president again. That being said, you have a fairly good chance of being able to return to the US if you have a valid F-1 visa in your passport. If you must see an American consular officer for a visa in order to return, there is a chance of it not being issued, especially if an I-140 petition has been filed even if not approved. It should also be noted that some consular officers are reluctant to issue F-1 visas for individuals on OPT.

1. The adjudication on NIW application has become stricter lately, if you have remained outside the country for a long period of time

A reader asks:
I am an ordinary master’s level software engineer with no publications and no newsworthy contributions. I already have a PERM priority date, but there’s still a long way before I becomes current. I don’t want to keep waiting in the U.S. –  I plan to return to my home country and wait there until the visa number becomes current, and then apply for an NIW green card.  So, once my priority date becomes current, I would apply for NIW or EB-1 directly from abroad and obtain an immigrant visa.  Is this plan feasible? I’ve heard NIW has become stricter recently. If my goal is to apply for NIW four or five years from now, what can I start preparing or doing now?

Alan Lee Esq. answers,
You are correct in your observation that adjudications on NIW applications have become stricter lately. The scrutiny on EB-1A has also toughened. You should also understand that it is more difficult to convince USCIS that your presence would be in the national interest if you are not in the country, and especially if you have remained outside for a long period of time. If you are in a position in which the company that sponsored the PERM is willing to wait for you while you spend time overseas, that is probably a more possible route to immigration although you or the company may have to explain to the US consulate why it would want to keep up the application for a number of years even while you have been out of the US. In planning to apply for EB-1A or NIW, you can begin to build achievements in your field – publications, citations, awards, professional memberships, media coverage, significant projects, letters from recognized experts, etc.

2. Can I apply for PERM and NIW at the same time?

A reader asks:
My company has already filed a PERM application for me, but it will likely not be approved until next year.  If I now file a National Interest Waiver (NIW) application, will it affect the approval of my PERM? Or should I wait until my PERM based I-140 is approved before considering the NIW?

Alan Lee Esq. answers,
The difficulty with a PERM application coupled with NIW application is that the PERM application requests a specific job along with minimal qualifications while the NIW application asks how the job will benefit the country. Presenting inconsistent backgrounds in one application as opposed to the other may raise questions concerning credibility. If there are no large discrepancies between the PERM and NIW, the filing of the NIW should not affect the I-140 adjudication of the PERM based application.

1. F-1 application requires the applicant to have nonimmigrant intent 

A reader asks:

I hold H-1B status but have been laid off, and I am now in the grace period. I had already filed an I-130 before, so I have immigrant intent; but my I-485 priority date has not yet become current. If I cannot find another employer, one possible option is to change from H status to F visa.  However, F visas require no immigrant intent. What should I do?

Alan Lee Esq. answers,
Sometimes an applicant can only go with the choices which are available to him or her, and if a change of status from H to F is the best option, the applicant would go with the option.
You’re correct. F-1 applications require the applicant to have nonimmigrant intent. Therefore, U.S. Citizenship and Immigration Services may indeed require you to prove that your stay in the U.S. is only temporary.
At that time, you will need to bear the burden of proof to demonstrate that you maintain close ties and ties to your home country, such as family, employment, or assets, and explain that if your legal stay on the F-1 visa expires and you haven’t completed immigration proceedings, you are willing to return to your home country.

1. Working for the company on EAD while simultaneously applying for a new H-1B would not create any risks for green card application

A reader asks:
I work for a non-profit organization that had a hiring freeze until the end of March this year, when they decided to keep me. Before that, my new H-1B (valid until 2028) was lost because of the hiring freeze. Now my current H-1B will expires at the end of August. My employer is concerned that using the I-485 EAD card  to work might create risks for them.  They are giving me only a three-month limit – if the new H-1B isn’t approved or the green card is denied within those three months, they will be terminated my employment. The company’s immigration management department was laid off, so no one there knows the risks. My question: Will working on the EAD while simultaneously applying for a new H-1B create any risk to my green card application?

Alan Lee Esq. answers,
Although you have presented a complicated fact situation, the quick answer is that working for the company on EAD while simultaneously applying for a new H-1B would not create any risks for your green card application. This is assuming that the organization has sponsored you for employment-based immigration and that the new H1B petition that is planned for filing is not inconsistent with the representations on the immigrant visa petition.

1. Can a Ph.D. who went back to China without applying for OPT return to the U.S.?

A reader asks:
I graduated last December with a Ph.D. in Social Sciences from a university in North America. I had originally received a job offer in Australia; however, while I was back in my home country waiting for my visa to be issued, the job contract was rescinded due to visa processing delays. I did not apply for Optional Practical Training (OPT), and my funding from my U.S. university has been completely cut off. I would like to ask: Is there still a viable pathway for me to return to the United States?

Alan Lee, Esq. answers,
Your path back to the US could be through family-based immigration if you have US citizen or permanent resident relatives who can sponsor you through one of the preferences or immediate relative categories. If you have the necessary monies, you could possibly immigrate through the immigrant investor program. You can also attempt to contact potential US employers who may be interested in your services and are willing to sponsor you under a nonimmigrant or immigrant visa. If you believe that you can qualify for self-sponsorship employment-based immigration through your being an extraordinary alien (EB-1A) or your knowledge/skills being in the national interest (NIW), you can apply directly on form I-140 to USCIS. Good luck.

1. When can I consider a mandamus action?

A reader asks:
It’s been a year since my EB-3 interview and there’s been no update. My priority date is July 2019. Since the interview last June, my case hasn’t moved at all; it’s still listed as “Interview Was Scheduled.” I contacted my senator, but responses were all templates. The officer at the interview was very young and said they couldn’t approve, only collect info for a colleague. I had a bad feeling then and now it seems my case is indeed stuck.  My company is alo going through layoffs. What should I do?

Alan Lee, Esq. answers,
I assume that the priority date has been current all along and that you or your attorney/representative have already attempted to contact USCIS to get your case moving without success. As the Ombudsman’s office of USCIS is no longer an effective alternative and you have gone through congressional inquiries, you and/or your attorney may consider a mandamus action in federal court to force the agency to make an adjudication in your case. Hopefully, the threat of federal court action will alone get the field office to look at your case and review it.

1. If there is an open priority date for your I-485, your status would be frozen, and you would not accrue unlawful presence during the pendency of the timely filed I-140 application

A reader asks:
My H-1B is about to expire, I am thinking of submitting NIW during the grace period, but I’m worried it might not be allowed. Someone told me that I could apply for immigration even from abroad – would that apply to me too?

Alan Lee, Esq. answers,
You can always submit a NIW petition, but an I-140 filing does not prevent you from accruing unlawful presence. That could be done with the timely filed I-140 coupled with I-485 adjustment of status application if there is an open priority date for filing the I-485. In such case, your status would in effect be frozen and you would not accrue unlawful presence during the pendency of the application. In such circumstance, a denial of the adjustment of status application would start the counting of unlawful presence at Day 1 as of the date of denial. Pertaining to your question of whether you can apply for immigration from overseas, you can indeed file for an I-140 petition when you are overseas.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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