Category: Q&A

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.

1. USCIS is giving additional scrutiny to nationals of China who graduated from one of China’s “Seven National Defense Universities”.

A reader asks:
I graduated from one of China’s “Seven National Defense Universities,” and I applied for EB-3 (downgrade). Both my spouse and I applied. 400 days have passed, and our case is still pending. We received our combo cards in March 2025, and there have been no other updates since then. Last October, the priority date retrogressed, but it became current again in January of this year. Our fingerprints were taken 400 days ago, and we still haven’t heard anything. Should I write to my congressman?

Alan Lee Esq answers,
As you are aware, USCIS is giving additional scrutiny to nationals of China who graduated from one of China’s “Seven National Defense Universities”. It is thus not surprising that your I-485 adjustment of status processing is taking so long. If you or your legal representative have not already done so already, you for your legal representative can contact USCIS at its customer service center at 1-800-375-5283 or make an E-Request electronically at https://egov.uscis.gov/e-request/ if the processing time has exceeded posted current times. If you have already done so, then you may certainly wish to contact your local US representative or senator to look into your case.

1. If I-485 is denied and H-1B needs to change employer

A reader asks:
I am currently working under an L-1B, with a priority date (PD) of December 2020. In early 2024, after the EB-3 Chart B became current, I downgraded and concurrently filed my I-140 and I-485. I found that at the time of filing, an I-485j was not required. Later, I received my combo card. My I-485 has been pending for almost a year, and I am currently in CRP (since Chart A has not yet become current). In 2024, I was finally selected in the H-1B lottery, but because of the pending I-485, my lawyer advised consular processing for H-1B activation. So I currently have an approved H-1B I-797, but haven’t attended the H-1B visa interview. After being laid off, the company is likely to keep me on payroll for a few more months.

Can I leave the US and apply for an H-1B visa during this period? Since I am currently on L-1B, if the H-1B visa is not viable, I understand that I can remain legally in the U.S. using my combo card. Given that my I-485 is in CRP, I need to wait for Chart A to become current before my case is processed (e.g., receiving an interview notice or an RFE for I-485j). Is my understanding correct?

The EB-3 Chart A is currently at early July, meaning my December priority date will likely not be current at least the next fiscal year, which gives me about 9 months to find a job and file a new I-485j. Currently, my title aligns with the SWE (software engineering) job description from my PERM application.  Does this mean I can look for a general SWE position under my I-485, or must he job duties be closely related to my previous role?

If my I-485 is denied, I will have to leave the U.S. immediately.  Would I still have an opportunity to find a job and return to the United States later? I have an approved H-1B I-797. Can a new employer file a petition for me, or would I have to go through the lottery process again?

Alan Lee, Esq. answers,
If the company has laid you off, you should not be thinking of leaving the US in applying for an H-1B visa since that would involve the misrepresentation that you are returning to the US to work for the same employer. During the time that an adjustment of status application is waiting to become current, USCIS can request an interview or further evidence. You are eligible to apply for porting to a new employer if it is offering a position in the same or similar occupation. That would be a judgment call for USCIS depending upon the closeness of the job descriptions, wage, SOC code, etc. If your I-485 application is denied and you have no other basis to remain in the US, you should leave the country within 30 days. Assuming that you had an approved change of status on the H-1B, another employer could file a new petition for you without your having to go through the lottery process again. I note, however, that unless the new $100,000 H-1B fee is successfully challenged, the new employer would likely have to pay the fee in order to do the sponsorship.

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.