Category: Q&A

My I-485 is pending now, and my H-1B is about to expire. Last month I just filed my H-1B extension, and it is currently pending. My wife is my dependent and just filed her I-485, and planning to apply her H-4. My question is, if my I-485 is approved, will my H-1B be invalidated immediately? Will my wife’s H-4 application be affected?

Arthur Lee answers:

I see that you are concerned about the fact that your wife filed later than you for I-485 benefits and that you may be approved before your wife. Unfortunately, your wife’s H-4 application becomes invalid as soon as you are approved as a permanent resident. That is because you no longer hold H-1B status as soon as you become a permanent resident. H-4 is not an independent status and is entirely dependent upon there being a H-1B principal. That being said, your wife is allowed to stay here legally during the time that her I-485 application is pending. If she requires employment authorization, she can apply for an EAD based upon the adjustment if she has not already done so.

 

1. Work normally with curtain working visa may be able to go to school part-time

A reader asks:
My I-140 was recently approved, and I have worked for so many years, and now I want to work part-time and study part-time. But my GRE and TOEFL have expired and want to take the exams again. Can I not be considered as an international student at this time?

Arthur Lee Esq. answers:
The answer here is dependent upon your current underlying nonimmigrant status. If you have F-1 status or are planning to change your status to F-1 to go back to school and successfully obtain an I-20, you can certainly study part-time (although that would take away your ability to work in most circumstances, save for CPT, eventual OPT, and on-campus part-time work). If you are under F-1 and have valid OPT or STEM OPT, you can do part-time schooling so long as you are able to fulfill your OPT/STEM OPT work hourly obligations. If you are under a working visa (i.e. an H-1B, L-1, O-1, etc.), you may engage in part-time schooling so long as you are able to fulfill your hourly working obligation. For instance, if you are a full-time (40 hour per week) worker under any of these statuses, you can attend school at night and work 8 hours per day. Of course, you may need to demonstrate to USCIS that you are working 40 hours per week through proof of pay, W-2s, and attestations from your employer. If you are attending school, but not working the number of hours you are supposed to be working under your current working visa, then you risk violating your immigration status.

2. I-485 has been submitted and can only allow to leave the US under advance parole, or H, L status

A reader asks:
I already have an approved I-140 (EB2) before, and now I am applying for a new I-140 (EB3) with the same PERM. My question is while this I-140 is pending, can I leave the country and come back to the US?

Arthur Lee Esq. answers:
The answer to the question depends in part upon whether you have already filed an I-485 adjustment of status application. If the adjustment has been filed and remains pending, you are only allowed to leave the US under advance parole or if you have H (specialized occupation) or L (intracompany transferee) status. If you are not at the point of filing for adjustment of status, the I-140 petition does not confer travel privileges. In that situation, your ability to leave the US and return would be dependent upon factors such as whether you have a valid visa for entry; whether you need to see a US consular officer for a visa to return and in that case, whether the visa that you are asking for has dual intent purposes. (You are obligated to disclose in a nonimmigrant visa application whether you have ever applied for an immigrant visa petition). In the event that you already have a pending I-485 based upon the EB-2 filing and are wondering whether you can travel while applying for an EB-3 visa status with the same PERM labor certification, that is able to be done through leaving the US under H or L status or advance parole based upon the pending I-485 application.

3. You have an unrevoked approved I-140, may be eligible for a 3 year H-1B extension/transfer

A reader asks:
I had approved I-140 in my previous company, and my H-1B has been used close to a total of 6 years and not much time left. If I am laid off and return to China at this time, wait a few years for the priority date to become current and then come back and use the remaining H-1B again, will the USCIS give me 3 years of H-1B or just the remaining of 6 years? I worry that the company will not give me an offer on the grounds that there is too little time left for the H-1B and the PD is current.

Arthur Lee Esq. answers:
If you return to China and then come back to the United States more than 1 year later, you will be able to restart another 6 years of H-1B assuming that you “win” the H-1B cap lottery. However, since you would be subject to the lottery unless you apply for a cap exempt organization this may not an ideal solution.

If you have an approved I-140, under certain conditions, you may be eligible for extensions beyond your 6th year without leaving the United States (or coming back into the United States after a couple of years out). Assuming that your priority date is not current, but you have an approved (non-revoked) I-140, you may be eligible for a 3 year H-1B extension/transfer. If you have an unrevoked approved I-140, and your priority date has been current for less than 1 year, you may be eligible for a 1 year H-1B extension.

4. It has been more than 180 days since I-485 was submitted then you can change your job

A reader asks:
If I go to school while my I-140 is still pending, and wait for the priority date to become current, then find a related job, can I apply for I-485? I feel the biggest obstacle is going to school/study will lose my H-1B and my right to work.

Arthur Lee Esq. answers:
Regarding your ability to apply for I-485 after finding a related job, you unfortunately are not eligible for porting since you have not yet filed your I-485 and thus cannot yet switch positions. Job portability, or the ability to move to a new job in the same or a similar occupational classification as the job offer for which an immigrant petition was filed is only available when an applicant’s properly filed I-485 has been pending for 180 days or more at the time that USCIS receives the request to port. In your case, it does not appear that you have filed an I-485. If your priority date is current at this time, you may file an adjustment of status application (with an intent to stay at your current job upon receipt of your green card), and then after 180 days have elapsed assuming your I-485 is still pending, then move to a same or similar position if you find one. But at this time, if you found a new job, you would have to file a new I-140 in addition to redoing the labor certification process if you are filing under EB-3 or EB-2 without Schedule A or NIW. You may be eligible to retain your current priority date so long as your I-140 petition is not revoked due to fraud, willful misrepresentation of a material fact, invalidation of labor certification, or material USCIS error. But aside from priority date retention, you would have to start your petition process over.

Regarding the schooling aspect of your question, you may go to school part-time under valid H-1B status. You can go to school so long as you are fulfilling your hourly obligations under H-1B status. For example, if you are a full-time worker (40 hours per week), you will need to work those 40 hours. If you are able to do schooling outside of those hours whilst still completing 40 hours of work per week, then there is nothing legally stopping you from going to school and studying. If you have an H-1B job that is part-time (say 20 hours per week), then you may go to school as long as you complete those 20 hours weekly. However, if you do not meet your work hourly obligations, you risk violating your H-1B status, which can complicate your I-485 application.

1. I have applied for the I-601 waiver of Communist Party membership and there should be no problem entering the country

A reader asks:
I am a member of the Communist Party of China. I applied for EB-1 with my wife. I-140 and I-485 were submitted together. The 601 main application has already got the card. I have been working with the combo card for a while, and now I am going to return to China. But I heard that the combo card will enter the small black room when entering the country, so the party member status is even more sensitive. I don’t know if you will be made things difficult in the small black room?

Alan Lee Esq. answers,
You are correct that applicants for adjustment of status who leave the US and return on advance parole mostly go into secondary inspection upon return. I am not sure that your description of a small black room is accurate. In the inspection, a Customs and Border Protection (CBP) inspector will generally look to see whether the application upon which the advance parole is based is still pending. The officer may also look at your information in the system to ensure that you do not have other reasons for inadmissibility, mainly on the criminal side. If you have already made an I-601 application for waiver of Communist Party membership, the membership should not be an issue for CBP unless something in the system indicates a danger to national security. Assuming that everything else is all right, the inspector should stamp your passport and allow you to enter.

2. NIW processing time is usually about 12 months

A reader asks:
Although I know that 63 days is not too long for NIW’s case, I check my status on case green every day. I roughly calculated that it will take 300 days for the number segment SRC239007 to be fully reviewed. Is this estimate correct?

Alan Lee Esq. answers,
You can check the USCIS processing times for most of the cases in the category to get a rough idea as to how long the NIW (National Interest Waiver) petition will take. Your case number begins with SRC (Southern Regional Center), which means that it is most likely with The Texas Service Center of USCIS. Currently, Texas projects 12 months waiting time for most of the NIW cases. For readers’ information, the other listed service center handling NIW’s, Nebraska, has an approximate wait time of 11.5 months. Kindly note that NIW petitions can now be premium processed at the cost of $2500 and that USCIS will reach the petition within 45 days of receipt of the I-907 premium processing application.

1. Company’s hiring freeze may affect PERM application

A reader asks:
The company is hiring freeze, but there is no layoffs. The departments that need to recruit are referred internally; it means there is no recruitment externally. If this is the case, can I still apply for a green card? Specifically which part will be affected? PWD, AD, or PERM?

Arthur Lee Esq. answers:
If there is a hiring freeze, the part of your application that may be affected is mainly the advertisement and recruitment stage. The PWD will not be affected since that is just a determination of your wage level and position by the Dept of Labor based upon the job description provided by your company. The ETA 9089 (ie PERM) is not affected as it asks a company to disclose whether it has had a layoff in the past 6 months in positions related to the one you will occupy upon obtaining a green card. However, the recruitment phase may be affected because the company will have to perform external recruitment for your position in its test of its labor market before you can be certified under PERM. This includes placing a job order with the state workforce agency, doing an internal posting disclosing that it will offer you a position at a specified wage, posting 2 Sunday newspaper ads in the area of intended employment, and 3 alternate forms of recruitment such as but not limited to website posting, 3rd party posting such as on Indeed or Monster, local newspaper ad, radio/TV ad, or college recruitment assuming that this is a professional position. If the company receives resumes from U.S. workers who seem like they may be qualified for the position, your company will need to contact/interview these candidates. If a candidate is able, willing, qualified and available to take the position, the company will have to offer your position to that qualified/able U.S. worker in its test of the labor market. Therefore, the recruitment phase may be affected and you must discuss the above possibility with your employer and verify that it is willing to do external recruitment on your green card position to test the U.S. labor market during this hiring freeze.

2. To apply for a PERM green card, the employer must be willing to hire full-time employees

A reader asks:
I am currently working as an engineer in a company with a work visa. What is certain now is that the company will no longer recruit full time engineers in the future, but will turn to outsourcing to find contractors. Excuse me, will this affect my PERM application and the advertisement before application?

Arthur Lee Esq. answers:
It depends on the circumstances of your case. First, your employer must understand that if your PERM case is successful, it must hire you as a permanent fulltime employee upon your getting your green card. If your employer is not willing to do that, then there is no basis for your PERM labor certification case. Second, during the recruitment process, your employer must test the labor market and interview all apparently qualified candidates for a fulltime engineering position. At this stage, there must be a willingness on the part of your employer to hire a fulltime engineer. Since your employer is testing the market for your proffered fulltime position, it must be willing to replace you with a qualified and willing U.S. worker who meets the qualifications as a fulltime employee if such a person applies and your employer has no other open position. As a side note, if there is a layoff in the engineering position in the six months prior to filing ETA 9089, your employer would need to notify and consider previously laid off workers in the engineering roles for your PERM position.

3. To track for case processing times

A reader asks:
It has been 3 months since I did fingerprints for my I-485. My application number is in the MSC239019 section. I finished fingerprinting in February, and it has been over 4 months. The case status is still showing “Case Was Updated.” When do I need to check with EMMA to speed up my case process?

Arthur Lee esq. answers:
I-485 processing times vary based upon the type of I-485 you are filing eg. employment-based, family-based, asylum-based, etc., and which local field office is adjudicating your I-485 application. The field office adjudicating your application will typically be your geographically-located local USCIS field office. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type (I-485, and specify which type), and your field office, and the website will inform you of the normal processing times for your type of I-485 application. You can also enter the date in which your I-485 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 or chat with EMMA to place a service request to inquire about the status of your case.

1. I-140 has just been approved and I want to change jobs…

A reader asks: 
At present, my H-1B’s three years are almost used up and I am about to renew it. For the sake of legal status, I have been working in a small company with low wages. I consulted about job-hopping before, but they all suggested that I should try to change jobs after my I-140 was approved. At present, my I-140 has just been approved less than 180 days. I plan to start looking for a job now. My questions are:

1. At present, the processing time for PERM is getting longer and longer.  If I switch to a new company, how long will it take to re-apply for PERM+I-140?
2. Are there any differences in the relevant policies for green cards of construction companies?
3. I requested to put the phrase of applying green card on day 1 in my contract, therefore, I believe only small companies would hire me, correct?  At present, I am struggling whether to ask my family for money for another four years or take the risk of possible problems/risks to do I-140 again? I am already exhausted from getting this I-140 approved.

Arthur Lee Esq. answers:

1. Firstly, you should make sure not to leave your current position until your I-140 has been approved for more than 180 days if fearful that your employer will seek to revoke it. If you are from a country such as China or India which is backlogged on the visa bulletin, then a withdrawal of an approved I-140 petition by your current employer may still help you in giving you an earlier priority date (i.e. when your PERM was filed or your I-140 was filed if there was no PERM labor certification). If your I-140 is revoked due to fraud or willful misrepresentation, revocation of labor certification, or invalidation of labor certification, then you do not retain an old priority date. Again, this only truly helps you if you were born in a country with significant backlog, which I would assume that you are since you have not applied for a green card yet. A timely revocation within 180 days by an employer would disadvantage you when you need to be on H-1B status for over the 6 year maximin time limit.
   In the case that you found a new job, you would need to redo the labor certification process—meaning filing a prevailing wage determination, testing the labor market, and filing ETA 9089, then filing another I-140. The good news is you would likely be eligible to keep your old priority date. However, this process would likely take another 2 years to get another approved form I-140 (with I-140 premium processing) with your new position. Then, you may file an I-485 application once your retained priority date becomes current. Typically, an adjudication on an employment based I-485 will take approximately 1 year. 
   I note that the labor certification steps may be skipped if you have an approved I-140 (or pending I-140 that is ultimately approved in the EB-1, 2, or 3 categories), and you have a properly filed I-485 application pending with USCIS for 180+ days. In that case, you may “port” your I-140 petition to a job in the same or similar job classification. But in your case, porting is not available as you have not filed an I-485 yet.
2. In USCIS’ eyes, there are not. Your job position would need to make sense in terms of the company’s needs, the company would need to show the ability to pay you the stated fulltime salary as promised in the labor certification application, and you would need to be a full-time salaried W-2 employee upon receiving the green card.
   However, due to the nature of many construction jobs, there are some things that you and your potential employer need to look out for. Some jobs require licensure by the state and local government. For instance, if you are working as an engineer (mechanical, civil, etc.), you may need an engineering license unless you plan to work under the supervision of a licensed engineer; architects, electricians, and general contracted construction workers generally need licenses too in many jurisdictions. Therefore your employer must review the relevant licensure requirements in your jurisdiction to ensure that you are qualified for your proffered green card position. Also, PERM recruitment for construction-related positions may involve notifying a labor union that a company is recruiting a foreign worker in a position. As such, the company and employee should determine whether a labor union covers the green card position and must post a notice of intent to employ a foreign worker with that union. Also, a construction-related position may require the foreign worker to travel to construction sites. In such a case, a notice of filing should be posted at the sites where the employee will perform work as well as internally using all in-house media according to normal internal procedures. Should travel be anticipated for areas outside the metropolitan statistical area of the primary worksite, additional recruitment may be required.
3. All companies have their own policies—some are willing to sponsor, some are not. Larger size companies may not be willing to include the language that you wish in their employment contracts.  However, I do note that it may be more difficult for a small company to sponsor you as it would need to show financial viability to pay you a full-time DOL-approved salary upon your receipt of a green card. Also its human resources department (if it has one) may not have the knowledge or experience in immigration matters as a larger company.

2. Apply for EB-1A on your own, not necessary need an employment letter

A reader asks:

I am working in the United States, and I am looking for someone to help me apply EB-1A. The person must write an employment letter to prove my work, and I will not change the field and need to ask the company to sign. Is this necessary? Is it enough to prove my job by paystubs? Because I will not change my field, I could sign it myself correct? As I feel it has nothing to do with the company, I don’t want the company to know that I am filing the petition myself. Is this idea feasible?

Arthur Lee Esq. answers:
As a condition of eligibility for EB-1A status, you must be able to show that you will be working in the same field in the United States in which you have extraordinary ability and that you will provide benefit to the United States. The adjudicating officer will decide whether you have proven these points based upon the totality of the evidence. Since you are self-petitioning, there is no requirement for a signed letter from an employer. However, having such a letter would be good evidence to show that you will continue to work in your field of expertise and provide a benefit. If you would prefer not to get such a signed letter, you can provide other evidence showing that you will continue to be in your field of expertise after your EB-1A is approved including but not limited to: (1) a showing that you have recently been working in your field of expertise such as paystubs, current job letter, and letters from others who know your work (not necessarily from management) and can attest that you are continuing to work in your field of expertise; (2) any recent contributions you have made to your field of expertise showing a continued interest in the pursuit of the field; and/or (3) any other evidence you can think of that would show that you are committed to your field.

1. To be eligible for an EB-2 NIW, your endeavor should be beneficial to the US

A reader asks: 
I graduated in 2011 in China with a master’s degree, and I worked as a computer professional teacher in a university for the past 12 years. Recently, because of my children’s education, I have the idea of immigrating. The first thing I considered was to New Zealand or Canada. Basically, people must go there before they can get their status. I don’t want to resign now because my children are still little. Now a middleman recommended me to do NIW, and said that I could apply while in China, and I am not in a hurry to go overseas anyway. The current situation is that I have 7 papers, patents and software works which were of average quality, and served as referees for some national competitions. I feel that my qualifications are quite average.  However, I talked to several China’s middleman, they all thought my qualifications are sufficient, but they did not mention any of the risk. I am very confused now, please help.

Arthur Lee, Esq. answers:
You might be eligible for an EB-2 NIW. The three criteria for demonstrating your eligibility for NIW are: (1) that your proposed endeavor has both substantial merit and national importance; (2) that you are well-positioned to advance this endeavor; and (3) that on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

That said, it is unclear what your proposed endeavor would be, and how it would be beneficial to the U.S. government. Assuming that your proposed endeavor meets the criteria, the second question needs to be addressed whether you are well-posotioned. Your Master’s degree (assuming this is in a field that is computer related), having 7 papers/patents/software, and being a computer science professor at a university would be considered. It would also be a good idea to have experts in your field write letters of recommendations describing your accomplishments in the field and how you are well-positioned to advance this field with your work in the United States to solidify your evidence on being “well-positioned.” NIW is on a case by case basis, so an adjudicating officer would need to find that on balance, your proposed endeavor has substantial merit and national importance—as such, your endeavor with computers must be worthwhile to the U.S. government. In your NIW filing, you must show that your endeavor is worthwhile in that it will help advance human knowledge, create jobs, advance the economy, or a field in the United States that the current administration values. The Biden administration through its policy memorandum encourages granting NIW where a foreign worker will advance the STEM (science technology engineering mathematics) fields. Some examples of endeavors that have been found worthwhile in published decisions include being a software developer of stock option valuation, and a software developer with a PhD in music technology applying computer technology to music-related areas for the interests of the U.S. 

Also, an officer must decide whether on balance, it would be beneficial to the US to waive the job offer and labor certification requirements. This inquiry looks into factors such as whether you will be self-employed in a manner that does not adversely affect U.S. workers; will own a business that provides jobs for U.S. workers; your work will otherwise lead to job creation; your endeavor has potential to generate considerable revenue consistent with the economy; your endeavor will benefit the U.S. even if other U.S. workers are available; national interests in your contributions are sufficiently urgent (such as U.S. competitiveness in STEM fields); or if labor certification is impractical for your position. You may wish to consult with a qualified immigration attorney who will further advise you on your qualifications as an NIW applicant, and the risks associated with filing such an application.

2. Should I do an appeal or file a motion after my EB-1A was denied?

A reader asks: 
I am in China. I submitted the EB-1A application in June last year and received a denial letter in April this year. I submitted a total of four categories and only approved two. What should I do next? Should I do an appeal or file a motion? What is the difference between these two?

Arthur Lee, Esq. answers:
The difference between an appeal and a motion is that a motion will be filed to the same authority that adjudicated your case previously. In your case, it would be the same USCIS service center that handled your EB-1A application. There are two types of motions: (1) motion to reopen would be a motion to the service center to consider new facts that were not present at the time of your original filing; (2) a motion to reconsider is a request to review its application of the law in its previous decision. Meanwhile, an administrative appeal asks a different branch of USCIS (in this case the Administrative Appeals Office (AAO) ) to review the field office’s decision. Just like a motion, an appeal must typically be filed within 30 calendar days of the issuance of denial. Unlike a motion, an appeal requests de novo review which means that the AAO looks at the record anew including all facts and applications of law and it may address new issues that were not raised or resolved in the lower agency’s decision. USCIS aims to adjudicate its motions within 90 days, and the AAO aims for 180 days. Whether to file an appeal or motion is up to you.  Many attorneys opt for appeal.  However, if you choose to file a motion note that you can still appeal to the AAO if your motion is denied or dismissed.

3. The duration of an H-1B visa depends on several factors

A reader asks: 
I worked in the United States for more than three years before, and I came back to China this year. In early May, I applied for the first H-1B visa at the Shenyang Consulate. During the visa interview, I told the visa officer that I had been working at Qualcomm, and my work was in the sensitive direction of chip verification. I thought I would be background checked, to my surprise, I passed the interview and my passport was submitted.  However, after getting the passport back, I found that the H-1B is only valid for 4 months. My I-797 is valid until July 2025. My passport doesn’t expire until 2025. I don’t understand why the H-1B is only given 4 months, shouldn’t it be a one-year H-1B?

Arthur Lee Esq. answers,
The duration of an H-1B visa depends on several factors including the specific circumstances of your case, the discretion of the consular officer, and any supporting documentation provided. Since you have a valid passport for 2 years, as well as valid H-1B status for 2 years, there is nothing on the reciprocity schedule for H-1Bs with China to show why you would be given such a short time. On H-1B reciprocity with China, you should be given 12 months or the period of validity of your H-1B petition, whichever is less. Since your passport and H-1B status are valid until 2025, it is surprising that you did not get a 1 year visa. It seems that reason for the shorter duration on your H-1B visa was the consular officer’s discretion, if not a mistake. Consular officers have the authority to determine the validity period of a visa based upon their assessment of the individual’s circumstances such as duration of job offer, petitioner’s compliance history, and other relevant information. While this is just speculation, perhaps the officer chose to give you an easier interview, but limit your ability to go in and out of the country without further questioning due to your work in a sensitive area in technology.

Arthur Lee, Esq. Article:
Requests for further evidence for submitted “missing” documents relating to current guidance for paper filed applications.

While it is good that USCIS is digitizing and modernizing its adjudication processes to increase efficiency and accuracy, the ongoing shift from paper-filed applications to e-filing has some growing pains. The example discussed here is the (relatively) new guidance by USCIS in assembling paper-filed applications to maximize ease of scanning documents. (https://www.uscis.gov/forms/filing-guidance/tips-for-filing-forms-by-mail) In a reversal from traditional policy, USCIS now discourages applicants from using fasteners, hole punch, staple, paper clip, binder clip, or any other tool for attaching documents to one another when filing directly with a USCIS service center “as that may cause delays in scanning the documents into the electronic database systems.” As an unintended result of this new guidance, it appears that USCIS has been misplacing submitted application documents and issuing requests for further evidence (RFEs) asking for documents that had already been submitted. Our law firm has encountered a few of these types of RFEs. One recent example is an I-539 application to extend nonimmigrant status for an O-3 dependent which was filed concurrently with an I-129 petition for the O-1 principal where the I-129 was initially approved, then USCIS issued an RFE on the I-539 asking for copies of the applicant’s marriage certificate, the principal’s most recent I-797 approval notice, and the dependent’s passport, visa, and I-94. Needless to say, these were all submitted in the original submission.

In this case, we numbered all of the exhibits and provided an exhibit list after the attorney cover letter; separated all exhibits with colored “exhibit pages” clearly labeling each exhibit; and rubber banded together the entire concurrent I-129/I-539 filing with all enclosed evidence. Despite these concerted efforts to ensure that USCIS would see all of the evidence, we received the RFE for documents that were submitted in this application.

While it is understood that USCIS is digitizing and moving away from paper, and that this problem will be resolved once USCIS reaches its goal of allowing all forms to be filed online, USCIS’ mishandling of paper documents in the interim resulting from the guidance discouraging adhesion of documents is a problem that must be addressed. It is less than ideal for a supposedly reliable agency, and not a good first impression of America for many noncitizens, to lose documents in transfer from the mailroom to the scanner. Perhaps in the transitory period to e-filing, USCIS should continue to encourage applicants to fasten their applications with ACCO fasteners. In any case, it should enact workable policies in the interim to prevent loss of documents to minimize time and resource waste and counter completely avoidable and unnecessary RFEs and rejections.

Arthur Lee, Esq. Q&As:
1. The online query of PERM labor certification database is inaccurate

A reader asks:
I was laid off by the company. I heard that the company cannot file PERM application within half a year after layoff. Where can I check the current PERM status of each company?

Arthur Lee Esq. answers:
A company can file a PERM application within 6 months of a layoff or reduction in force. However, there are additional caveats when a company chooses to do so. If the company has had a layoff in the area of intended employment within 6 months of filing a PERM application, and the layoff involves the occupation for which the certification is sought, or a related occupation, then the company must disclose this on the application to Dept. of Labor. In addition, if such a layoff occurred in this 6-month period, the company must notify and consider previously laid off U.S. workers in the related roles for the PERM position for which certification is sought. A notification to a previously laid off worker in the same or related occupation must provide a full description of the specific job opportunities, include clear instructions, and invite the worker to apply for the position. Unfortunately, we do not believe that there is an online forum effectively showing which companies have filed PERM applications in real time. Although the filing of PERM is public record accessible through official FOIA (freedom of information act) requests, there does not seem to be an Internet website accurately showing in real-time which companies have filed PERM applications on what dates. I note that there is one website (H1B grader) which has a green card PERM labor certification database, but I have tried it out and it is inaccurate.

2. A showing of job applications in the United States is not normally required for an EB-1A petition.

A reader asks:
When the lawyer was preparing the EB-1A application, he asked to submit some job application evidence, which is probably my application record for finding a job in the United States. I’m currently working outside the  US, and it’s not realistic to apply for jobs now. Since getting a green card is still far away, the law firm means that even a screenshot of the US job application record will be helpful. If there is no evidence of applying for a US job at all, the risk of RFE will increase in the future. I would like to ask, is this evidence really useful?

Arthur Lee, Esq. answers:
While I do not know the specifics of your EB-1A case, a showing of job applications in the United States is not normally required for an EB-1A petition. That being said, an EB-1A petition should include evidence showing that you will be continuing to work in your area of expertise and that your immigration will benefit the country. If you are currently working outside the United States in your area of expertise, that can serve as good evidence that you will continue to work in this area of expertise. If you have a long history of employment in the area of expertise, and you have maintained excellence in this area to this date, that may serve as good evidence as well. USCIS evaluates whether you will continue to work in your area of expertise through a look at the totality of your circumstances. For instance, if you have been an extraordinary musician, but have not been maintaining your practice of music and have been engaged in other fields—like say, accounting, in your recent history—USCIS might not be convinced that you are coming to the United States to contribute your musical talents, rather that you are coming here to make a living in a different field. If your lawyer is asking for evidence that you have applied to certain US jobs, it is likely that he/she believes that there is not enough evidence that you are able to engage in your field of extraordinary ability when you come to the US. If that is the case, then applying to US jobs in your field of expertise may be some useful evidence. Other, perhaps useful evidence would be your current work in your field of expertise regardless of location and an overall showing that you maintain a passion in that field that you will continue indefinitely. 

1. Applying for NIW must show you can advance the national interest

A reader asks:
I am in China, and I consulted an American lawyer by email, and the reply was I met the requirements of NIW and can sign a contract.  However, I was told that I must work in the relevant field for at least half a year after getting the green card, otherwise the green card could be revoked. It is difficult for me to do that because my major is education and I have been in China, so I apply for NIW which an employer is not required. If I really must find a job in the same field after entering the US, I will have to reconsider whether to apply for NIW. What should I do?

Arthur Lee answers:
Assuming that you get your EB-2 NIW is approved and you go for your visa interview, you should demonstrate how you plan to utilize your knowledge and skills to advance the national interest per your EB-2 application, for which an employer was not required. You may independently perform research, for instance, if your EB-2 NIW was research-related, or try your best to find an employer in the field of endeavor. While every NIW case is different, your ability to advance the national interest through your work as well as your intent to do so must be made clear to a consular officer.

There is a possibility that if you do not enter the position or endeavor promised on your EB-2 NIW application, your green card will be revoked. One way in which revocation would occur is in the naturalization (citizenship) process. At that stage, you would be expected to produce 5 years of tax returns and employment information. Also, an officer may ask you how you petitioned for your green card, and what job you performed upon entering the United States. While many adjudicating officers may not thoroughly ask about this, the few that do could find that you obtained your green card on false pretenses and begin proceedings to revoke it. I also note that in such a case, USCIS would issue a notice to appear (NTA) to initiate removal proceedings, and you would remain a permanent resident until the immigration judge issues a final decision. 

If you are not confident in your ability to advance the national interest as proposed in your EB-2 NIW application (whether through self-employment or through employment with another company), then you may decide to seek a different route to getting a green card, such as a PERM labor certification.

2. The filing of an I-140 petition may impact F-1 visa approval

A reader asks:
I am currently working in China. Last year, I filed I-140 immigrant petition, the priority date is already current in the second half of last year. Due to my personal reasons, I want to apply for a PhD to return to the United States for further study. Since F-1 is a non-immigrant visa, and the time for a doctorate is relatively long, will the approval of the application have a relatively serious impact on the application for F-1?

Arthur Lee answers:
The filing of an I-140 petition may impact F-1 visa approval, which requires non-immigrant intent. That being said, you may be able to secure an F-1 visa if you bring clear evidence to the consular interview that you intend to return to China after your studies. You should bring evidence that you have ties to China that you do not intend to abandon including but not limited to property ownership or unexpired residential lease; family ties such as spouse, children, or parents; investments and financial assets in China; and demonstration of social relationships and involvement in your local community. You may also explain to the consular officer that your desire to take a nonimmigrant visa despite your possession of an approved I-140 with a current priority date with which you are eligible to enter the US with a green card is evidence itself of your intent to return to China. 

If you desire to maximize your likelihood of obtaining an F-1 visa, you may request a withdrawal of your I-140 petition. Of course, this would likely eliminate your chances of coming into the United States as a lawful permanent resident for the foreseeable future.

Alternately, you can continue your green card case and enter the U.S. with an immigrant visa assuming that you pass the consular interview. Once you have a green card, you are eligible to attend school for PhD study without getting an F-1 visa. By the same token, you must engage in employment as promised on your I-140 petition for a reasonable time period. During your initial months in the United States, you may attend school as long as you can fulfill your job responsibilities on a full-time basis as stated in your I-140.

3. USCIS may apply previously captured fingerprints to many new cases

I submitted my I-485 application at the beginning of November last year and it was sent to SRC, but I haven’t received the fingerprint notice yet. It has been a long time, and I checked the case status extensively. The cases with same middle two numbers had rarely been fingerprinted, but the latter numbers’ cases had all been fingerprinted. What’s happening here?

Arthur Lee answers:
As a rule, all I-485 applicants between the ages of 14 to 79 are required to be fingerprinted for the purpose of conducting security clearance and criminal background checks. To increase efficiency, USCIS has in the past few years applied previously captured fingerprints to many new cases, but if USCIS is applying your old fingerprints to your I-485 application, it would have sent you a notice stating so. If you have not received a fingerprinting notice yet, you may file an e-request through the USCIS website to inquire about why you have not received your biometrics appointment yet.

1. Laid off H-1B employee, where the employer did not withdraw the approved H-1B, may be able to have a successful H-1B transfer

A reader asks:
This year is my last year of OPT, I finally won the H-1B lottery, but was laid off. My question is if I find a new job now, is there any way I can transfer this H-1B? I understand that the best H1B situation is after 10/01, I need to take two paychecks before leaving, but now I was laid off. What to do?

Arthur Lee answers:
Technically, since a cap H-1B petition is only valid starting on 10/01, you are not in valid H-1B status yet. By rule, you are not eligible for an H-1B transfer. This is USCIS’ official position. However, we have heard of a successful H-1B transfer where the party did it before his 60 day grace period was up, and his employer who laid him off did not withdraw the H-1B approval prior to 10/01. Other than that, your best options are probably to return to school for another year of study, or find another nonimmigrant employment pathway with another company willing and able to hire you such as but not limited to O-1, L-1, or E-1/E-2/E-3 if you qualify.

2. When the H-1B was not approved, the H-1B lottery spot could not be preserved 

A reader asks:
In 2016, I won the H-1B lottery but was requested RFE for additional materials. Later, at the end of June, the company suddenly terminated my work contract and cancelled my H-1B application. At the beginning of July, I returned to China immediately.  Now I have just returned to the United States after the epidemic. Can my H-1B be saved? Does it mean that I don’t need to draw the lottery again but only find a company that is willing to sponsor me? 

Arthur Lee answers:
Unfortunately, as your H-1B was not approved, you have never been in H-1B status. As such, your H-1B lottery spot has not been preserved. You cannot transfer an H-1B status which was not initially approved. Therefore, you will be subject to the lottery unless you apply for an organization that is cap exempt such as a higher educational institution, nonprofit organization affiliated with an institute of higher education, nonprofit research organization, or government research organization.

Article:
1. Where are all the I-601A cases going?

We have had a number of I-601A provisional unlawful presence waiver cases transferred lately, and wonder whether they are headed to the location provided in the transfer notice, the Potomac Service Center, or if they will be headed ultimately to the new virtual remote HART (Humanitarian, Adjustments, Removing Conditions, and Travel Documents) Service Center that is opening at this time in order to speed up processing as a result of pending litigation. Of special interest to us is that the remote center will concentrate on I-601A’s as well as “bona fide determinations” for U visa applicants (I-918), VAWA petitions (I-360), and asylum reunification petitions (I-730). In an article written by a senior fellow at the American Immigration Council, Dara Lind, “New USCIS Center Is Good News For Some Of Its Worst Backlog Victims”, Immigration Daily, 4/19/23, she said that the Council documented in a recent class-action lawsuit that processing times for I-601A grew sixfold from 2017 to 2022, and that of the two service centers handling the waivers, it is taking three years at one center and 3 ½ in another one to decide 80% of the waivers. Attorneys in the lawsuit estimate that the class of people who have waivers pending for more than 12 months would include at least 70,000 people. In favor of the ultimate destination being HART, it otherwise makes little sense to transfer from the Nebraska Service Center to the Potomac Service Center since both have a current published processing time of 44 months for 80% of the cases.

2. Watch out for distance learning.

During the pandemic, USCIS was operating under Covid flexibilities under which distance-learning had been allowed in excess of the regulations under 8 CFR 214.2(f)(6)(i)(G) which states:

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

In an ICE SEVP Broadcast Message on 5/11/23: “Termination of SEVP COVID-19 Flexibilities”, ICE said that because of the termination of the Covid public emergency on 5/11/23, the SEVP Covid-19 guidance terminated on that day. Active F and M nonimmigrant students are able to complete the 2022-23 academic year under Covid-19 flexibilities through the 2023 summer semester. But active F and M nonimmigrant students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits for the 2023-24 academic year. Initial or reentering students must enroll in programs complying with the regulatory limits for distance learning. This must give pause now to those students wishing to enroll in schools offering a tenuous connection to physical classroom instruction as USCIS may now be looking harder at these schools’ arrangements for instruction following the ending of the pandemic emergency.

Q&As:
1. After receiving your permanent residence card, you do not need I-131 or I-765

A reader asks:

Eb-1A and I-485 show that new card is being produced, but I-131 and I-765 show that case was received and fingerprints taken respectively. In this case, is there anything I need to do? Will I-131 and I-765 petitions be canceled automatically?

Mr. Lee answers,
It appears as if you received an email or emails from USCIS that your green card is being produced which although unofficial can usually be relied upon. It also appears that you have checked the USCIS online status system and the ancillary applications of I-131 advance parole and I-765 employment authorization application, which shows that the applications have been received and fingerprints taken. The online status system is only as current as the person inputting the data, and it would appear that no action has been taken although the information may not be current. You do not have to do anything at this point. USCIS should at this juncture close or deny both of the ancillary applications as it is granting your permanent residence. We have seen that sometimes when the agency personnel are working on the green card application and ancillary applications at the same time, the ancillary applications are approved as they are being worked on by other officers. Please note that if you receive approvals of advance parole and employment authorization after receiving your permanent residence card, they cannot be used as you are now in another status.

2. It is a common situation that combo cards are not adjudicated together for all members of the family

A reader asks:

I applied for EB-1B, and the principal and dependent had fingerprinted at the end of January. The main applicant’s combo card was approved at the end of February, but we have not heard anything on the dependent’s case yet. Is it normal? Is there a way to solve the situation?

Mr. Lee answers,
It is unfortunately a common situation that combo cards are not adjudicated together for all members of the family who apply for them. The solution is either to wait until the published processing times for 80% of adjudications in the categories of EAD and advance parole have been reached to trace the case through the USCIS Contact Center (1-800-375-5283 or one of the other ways to contact the Contact Center), or prove that the dependent meets the expedite criteria of the agency. The current expedite guidelines are:

• Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to timely file the benefit request; or (2) to timely respond to any requests for additional evidence;
• Emergencies and urgent humanitarian reasons;
• Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
• S. government interests (including cases identified as urgent by federal agencies such as the U.S. Department of Defense (DOD), U.S. Department of Labor (DOL), National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Justice (DOJ), the U.S. Department of State (DOS), DHS, or other public safety or national security interests); or
• Clear USCIS error.

I note that we had a recent case in which the dependent received the combo card prior to the principal applicant, who had a more pressing need for it, but did not meet the expedite criteria. The principal did finally receive the card, just in time to keep working for the company without a break.