Category: Q&A

1. You cannot change status from an immigrant visa to nonimmigrant visa status in the US

A reader asks:
My case is a bit complicated. I-485 has been submitted for EB-5, and needing to provide additional documents. The approval is likely, but the project has declared bankruptcy, which may cause issues with the I-829 application later.  Therefore, I am considering switching  to NIW. If I receive the conditional green card now, can I voluntarily give it up before transitioning to the I-829 and continue with the NIW application?  I have heard that transitioning from an immigrant to non-immigrant status is very difficult. If my conditional green card expires, do I need to leave the country immediately and apply for another non-immigrant status abroad, like the H-1B?

The company’s immigration officer said that they won’t retrieve my case and told me to wait for the green card. Can one really have no payroll before receiving the green card?

Alan Lee Esq. answers,
Having a conditional resident status allows you to remain legally in the US, but if you are not filing the I-829, the conditional status would expire and without any changes in your condition, you would seemingly have no basis to remain in the US. It is our understanding that you cannot change status from an immigrant visa to nonimmigrant visa status in the US, and that you would have to leave the country to obtain a nonimmigrant visa status. On your other question as to whether one can really have no payroll before receiving the green card, I assume that you are referring to the conditional green card – in such case, that is entirely possible, especially in the EB-5 context, and also given that you must have work authorization to be employed in the US.

2. You would face a 10-year bar for unlawful presence once you leave the country

A reader asks:
My I-140 is approved but my H-1B status has long expired. After  I switched from F-1 to H-1B, I haven’t returned to my home country. If I go now for a visa interview, would there be a high risk?

Alan Lee Esq. answers,
If your I-140 petition is approved but your H-1B status has long expired, a major question is whether you have maintained legal status in the US. If you have not, you would face a 10 year bar for unlawful presence once you leave the country. Assuming that you are maintaining legal status under some other nonimmigrant category, you could face questions concerning your intent to take up the position with the I-140 sponsoring organization if that is also the organization that sponsored the H-1B. This is assuming that the organization is willing to move forward and keep sponsoring your immigration. In such circumstance, if you are able to convince the consular officer that there is still a bona fide need for your services with the organization, then the risk is mitigated.

1. Bloggers with millions of followers do not meet EB-1 requirements

A reader asks:
I still have a job, but in my spare time, I’ve been using Facebook & YouTube for a few months and have already gained 100,000 followers. If I take this more seriously, reaching 1 million followers should just be a matter of time. If I become a fitness influencer with 1 million followers, could I apply for an EB-1?

Alan Lee Esq. answers,
I believe that it would be difficult for USCIS to approve such an application even if you reach 1 million followers. The following are the requirements for EB-1A consideration of which an applicant must fulfill three before going into a final merits determination of whether the individual is one of the best nationwide or worldwide –

1. National or International Awards: Evidence of receipt of nationally or internationally recognized prizes or awards for excellence in the field.
2. Membership in Exclusive Associations: Evidence of membership in associations in the field that require outstanding achievements as judged by recognized national or international experts.
3. Published Material About You: Evidence of published material about you in professional or major trade publications or other major media.
4. Judging the Work of Others: Evidence that you have been asked to judge the work of others, either individually or on a panel.
5. Original Contributions of Major Significance: Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.
6. Authorship of Scholarly Articles: Evidence of authorship of scholarly articles in professional or major trade publications or other major media.
7. Artistic Display of Work: Evidence that your work has been displayed at artistic exhibitions or showcases.
8. Leading or Critical Role: Evidence of a leading or critical role in distinguished organizations.
9. High Salary or Remuneration: Evidence that you have commanded a high salary or other significantly high remuneration in relation to others in the field.
10. Commercial Success in the Performing Arts: Evidence of commercial successes in the performing arts, as shown by box office receipts or sales.

Another facet of the EB-1A category is that you must show sustained achievement over a period of time and so even if you were able to fulfill three categories of proof, you would have to show years of sustainable achievement in the field.

2. Recruitment must be completed within 180 days before submitting PERM

A reader asks:
I applied for EB-2. During the process, PWD was approved in March this year and started advertising in May, but PERM has not been filed yet. I remember there was a 180-day requirement, and I urged them to do it in early September. They told me it was okay, the deadline was November 8th. I thought that since the lawyer said so, it should be correct. However, I was suddenly told today that since the employer did not advertise in paper media as the lawyer requested, but only posted online, it is too late to put it in the newspaper now. So far, all their efforts have been wasted, and they have to start all over again for PWD. This is like my entire past year has been wasted. More importantly, my H-1B will be six years in May 2026. If I want to extend the period later, I must wait for PERM for more than one year before that, which means I must submit PERM before May next year (2025). It’s already October. If we restart PWD, based on the current processing time and advertising, it may not be on time. Please advise what I should do? Is it really like they said that there is no time to file PERM, and I have to start over? How is the PERM filing deadline defined?

Alan Lee Esq. answers,
Yes, the 180-day rule requires that recruitment steps be completed within 180 days before filing the PERM. If your employer didn’t follow the lawyer’s instructions (e.g., skipped newspaper ads), that recruitment effort is invalid, and you must restart the PWD and recruitment process. Given your H-1B max-out in May 2026, you need the PERM to be filed by May 2025 to be eligible for H-1B extension beyond 6 years. PWD processing takes 5 months currently and with the time for recruitment at fastest another 3 months, that would be 8 months when you have 7 (question sent in October). Timing could perhaps be shortened for recruitment if the lawyer knows or has a good idea of the prevailing wage and if the employer is willing to take the risk of beginning recruitment without knowing the wage amount for certain since the wrong PWD would necessitate redoing the recruitment.

3. If you are laid off while doing consular processing after your date becomes current, the green card application will end

A reader asks:
My I-140 is approved and my PD will be current soon. Due to family reasons, I need to transfer to my company’s overseas branch before the date becomes current. If I choose consular processing abroad after the date becomes current, what impact would it have if I am laid off before I get the green card?

Alan Lee Esq. answers,
If you are laid off while doing consular processing after your date becomes current, and there are no prospects for continued employment with the sponsoring organization, your application for a green card based upon company sponsorship would be effectively ended, since it can be assumed that the organization would not continue sponsorship. You would have to seek sponsorship with another organization. As the I-140 petition is already approved, you would be able to retain the priority date absent fraud, misrepresentation, or material USCIS error in the prior I-140 approval.

4. Re-entering the country with an H-1B is conducive to converting to H-4

A reader asks:
My wife filed for NIW and submitted the I-485, and we both received combo cards.  However, my wife’s job might face layoffs. I recently used the AP on the combo card for re-entry, which technically puts my H-1B status in a grey area. Can I still switch to  H-4 under my wife’s application?

Alan Lee Esq. answers,
You are correct in thinking that reentering on advance parole instead of H-1B might present a problem in changing to H-4. Assuming that your wife still retains her H-1B status and that you are set on obtaining change of status instead of applying for H-4 visa overseas, you may decide to take a trip out of the country and return under H-1B status if you still intend to work with the H-1B employer after reentering the country. This might especially be attractive if you already have a H-1B visa in your passport. Reentering the country under H-1B and working for the H-1B employer for a small period of time would give you the basis to make the change to H-4 without much difficulty. Otherwise, according to our understanding, you would have to leave the US and apply for the H-4 visa at a US consular post.

1. I-485 is pending, we suggest not staying out of the US more than 90 days

A reader asks:
My I-485 is pending, and it will probably take about 5 years until Form A is available. Currently, I have AP and EAD cards, and I still have a job in China. Can I go back to the US every six months for 2 weeks to utilized my cards? Lawyers have different opinions. There is no law that explicitly stipulates how long one must live in the US. My lawyer recommends that I should not leave the US for more than 180 days. However, some lawyers also recommend that one should not leave the US for more than 90 days, and should stay in the US for more than 183 days each year and be a tax resident. Can I really use my AP and EAD cards until my I-485 is adjudicated? How big is the risk? Will I be stopped when entering the US, or it will cause my I-485 be rejected? It seems that as long as I go back to the US every 4 to 5 months and have evidence I am willing to stay in the US and I should be ok, correct?

Alan Lee, Esq. answers,
You are correct that lawyers have different opinions of how long individuals with advance parole based on I-485 can remain outside the United States. We tend to be conservative and would recommend the same as some lawyers that you say suggest not staying out of the US more than 90 days. We are entering a new age of restriction in immigration law under the Trump administration and risks that may have been acceptable under the Biden administration may be much riskier given the turn in DHS attitude from benefits granting to enforcement that we are now starting to see.

2. Check the processing times of the office(s) having jurisdiction over your I-485

A reader asks:
My I-485 has been lying on NBC since I submitted the form in January, and there is no news about I-765 and I-131. Am I in a black hole?

Alan Lee, Esq. answers,
I doubt that you have fallen into a black hole. USCIS has processing times for everything, although it had said that was decreasing the time for EAD applications submitted with 1-485’s. That being said, you can check the processing times of the office(s) having jurisdiction over them. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type and your USCIS office, and the website will inform you of the normal processing times for your type of application. You can also enter the date in which your application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest (https://egov.uscis.gov/e-request/Intro.do ) or chat with EMMA (https://www.uscis.gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative.

1. Adjudication of an I-140 petition depends more upon the company’s situation

A reader asks:
I work in an educational consulting management role at a startup. My PERM application was submitted in September 2023, but I have not received any update so far. I am anxiously waiting, but unfortunately, I was laid off by the company. The company is willing to keep me on the payroll for a short period, but not for long, and will help me complete the I-140 process. The company is currently facing difficulties, but it may recover in a few years, so they might be willing to file my I-485 at that time. The EB-2 process started 3 years ago, and I really want to retain my Priority Date (PD) at this final stage; otherwise, all previous efforts would be in vain.

My question is:

1. What should I do now? If I leave the company now, will it affect the I-140 application?
2. Previously, the company adjusted my salary to meet the Department of Labor’s requirement because the company’s profit were insufficient. If I leave before the I-140 is filed, will it affect the approval probability of I-140? The payroll duration will be short.  If the PD becomes current in 3-4 years and the company is still willing to help me complete I-485, what should I do?
3. I’ve heard that after getting a green card, one needs to work for the employer for more than six months. The company is reluctantly willing to file  I-485 or process the immigration visa abroad but may not be willing to employ me for six months. What should I do in this situation?

Alan Lee Esq. answers,
Under the law, a company should not sponsor someone under an I-140 petition that it has no intention of hiring as a permanent employee at the time that permanent residence is approved. That being said, adjudication of an I-140 petition depends more upon the company’s financial state and whether the beneficiary meets the qualifications of the PERM labor certification. Questions having to do with leaving the company now have more relevance at the time of application for adjustment of status or immigrant visa processing overseas. At that point, questions may arise concerning your leaving the company and the bona fide character of the sponsorship. To your other question, a good idea is that the successful applicant for immigration based upon labor certification should remain with the company for six months. However, US immigration law is not a license for bondage, and so the time may be shorter to remain with the company if there is good reason for a short time of employment.

2. Questions may be asked at the I-485 adjudication regarding why you no longer work for company

A reader asks:
If the petition letter mentions many things I did for the company, but when the PD becomes current, I am no longer with the company or am unemployed, can I still use this I-140 to submit I-485, or process an immigrant visa abroad? Will it be questioned by the immigration officer?

Alan Lee Esq. answers,
I assume for purposes of your question that the I-140 petition has already been approved and that you are waiting for the priority date to become current. Only if the company has a bona fide intention to hire you at the end of the process under the same terms as stated in the labor certification application and/or immigrant visa petition should you use the I-140 petition approval to submit the I-485 or process for immigration visa overseas. Kindly note that questions may be asked at that time of final adjudication as to the reasons for which you are no longer working for the company and why the company would continue sponsoring you for the green card anyway.

3. I-485 may be strictly reviewed if you return to the company you left

A reader asks:
I left company A three years ago and switched to company B. When I was at company A, my I-140 had been approved and I was waiting in line to submit my I-485. Now, company B is helping me apply for a green card perm. The final materials are ready to be submitted and the PD is current. A contacted me and hoped that I could go back. If I go back to A, can I directly submit I-485? Or do I need to do a new perm? A’s I-140 should not be revoked.

Alan Lee Esq. answers,
If company A did not timely revoke the 1-140 petition and is indeed offering you the position again, you may be able to directly submit the 1-485 application without going through the PERM labor certification process once again. Please note that USCIS may take a harder look at your case as to whether it is a bona fide situation of an employer actually wanting you back or an employer just attempting to accommodate your desire to obtain permanent residence. The three-year period of time that you have been away from the company may be very concerning to an officer.

4. I-140 processing time is less than 350 days at two service centers

A reader asks:
I submitted an I-140 for EB-3 before, and I was obsessed with not applying for an accelerated application at my own expense. I have been waiting for 350 days without realizing it, and the status is still “case was received”. I would like to sincerely ask for some advice. Should I continue to wait and see if there will be an update soon, or should I give up the fantasy of self-funded PP?

Alan Lee Esq. answers,
According to the latest timelines of USCIS, the two service centers processing 1-140 petitions were doing so for 80% of their cases at 8 months for Nebraska and 5.5 for Texas. These dates are far below 350 days. If your case has not been adjudicated by this time, you may file an eRequest (https://egov.uscis.gov/c-requcstrlntro.do) or chat with EMMA (https ://www. uscis. gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative. Alternatively, the petitioner (not you) can submit an application for premium processing on form 1-907.

An F-1 applicant has to be able to demonstrate intention to depart after the studies are finished

A reader asks:

I hold an F-1 visa, which has expired, and I am now on OPT. The company applied for H-1B, but it was rejected several times. I have submitted a National Interest Application (NIW) application, which is under review. I am considering returning to China at the end of the year and interviewing for F-1. USCIS updated its policy on F and M visas in December 2023, allowing students to apply for green cards during their studies without affecting their status. When I think about staying here alone during the Christmas holidays, I can’t help but want to go back to China. At present, the case I have seen is that after the I-140 is passed, there is no problem traveling to and from the United States with a valid F-1. I want to ask if there is any risk in going back for an F-1 interview during the review period after submitting a green card application?

Mr. Alan Lee Answers,
The December 2023 guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay. However, the guidance is not a guarantee that an F-i visa will be issued. An applicant still has to be able to demonstrate intention to depart after the studies are finished.

In addition, the election of Donald Trump is concerning as he has a negative stance on immigration and has a raft of executive orders including many supposedly in the field of immigration which may make the usual immigration processes more difficult. I note that some colleges and universities have already advised their students not to take trips overseas during the Christmas break because of the enhanced risk of problems in returning.

1. There are remedies for EB-1A rejections

A reader asks:
I am in the field of new energy materials. When I submitted my professional immigration application a year ago, my citations were around 2,300. At that time, I was about to join a R2 elementary school as a teacher. I found a lawyer and submitted EB-1A and NIWNIW, but I only received the RFE reply recently. The lawyer mentioned 4 standards: published academic papers (36 SCI papers) and books and monographs (4 papers). The officer only recognized the review, saying that the professional information provided was incomplete, the author circulation was missing, or my work was not provided, etc. In fact, every report mentioned my name and school unit, and there were also links to published articles, which I highlighted. The officer did not recognize that my research work was original and important. I have 5 recommendation letters from professors in this field, which discussed my work in detail, and two recommendation letters were ignored. The lawyer said that the recommendation letters were not prepared enough. The last reply is the most outrageous. The officer ignored my 36 papers, some of which I co-authored as the first author of top publications, and some of which were recognized as high-impact books in interdisciplinary fields such as Nature Energy. The officer said in general that some of them were non-academic publications and that the audience of publications should be ordinary people. The lawyer said that he had never read such a thing in his 30 years of practice and felt very bad. I will prepare a response with my best efforts, but I also want to know what to do if the result is not good?

Alan Lee Esq. answers,
From your fact situation, it appears that you have received the RFE on the E13 1A petition. Unfortunately, USCIS examiners have been known to give difficulties in extraordinary alien cases, and in one instance, even denied such recognition to an applicant who had an Oscar award. I imagine that you and your attorney will work hard to respond to the RFE, and the EB1A petition can hopefully be approved. If the EB1A is denied, you can wait and see what happens with the NIW petition, or you can take up options of a motion to reconsider, motion to reopen if you have new evidence of achievements predating your priority date, appeal to the USCIS Administrative Appeals Office and then to the federal court if you wish to take it further, or sue directly in the federal court. Another option is to refile your petition, but note that you must inform USCIS on the Ii 40 petition that you have previously filed a petition.

2. Frequent EB-1A applications do not help approval rates

A reader asks:
I am a doctoral student and want to apply for EB-1A, but my case is weak. In order to avoid the discretion and bias of immigration officers on the same case, I have come up with a solution, which is to submit an application every 3 months so that the case can be sent to different immigration officers to increase the approval rate. Is this a reliable approach?

Alan Lee, Esq. answers,
Unfortunately, this does not sound like a good strategy. Besides USCIS being able to track all the cases which are being filed, page 3, part 4, question 8 of the I-140 petition asks “Has any immigrant visa petition ever been filed by or on behalf of this person?” Filing as many petitions as you contemplate (once every three months) is almost certain to attract unwelcome attention.

3. H-1B with 30 days left to apply for expedited processing

A reader asks:
I am currently working at a school, and my OPT will expire at the end of March 2025. Should I convert my OPT to H-1B first and then submit I-485, or should I submit I-485 and I-765 first and then use the new EAD, then convert to H-1B?

Alan Lee, Esq. answers,
The answer to your question appears to involve timing as this question is being answered when you have approximately 30 days of time left on your OPT. Any of your strategies is workable, but if you have not already begun, you will probably have a gap in your ability to work unless your choice is H-1B with premium processing. (I assume that the H-1B that you are contemplating will be with the school, which I further assume is an institution of higher education and cap-exempt – if not, your organization would have to put in a H-1B registration application for you which in 2025 is running from March 7, 2025 – March 24, 2025 and you would hopefully be selected). In applying for H-1B, work authorization is only given when the H-1B petition is approved. If faced with a short timeline, the school may have to opt for premium processing on form I-907 application for premium processing to allow you to continue your work without break. If not filing H-1B through a cap-exempt school, an H-1B approval would only take effect in October for you at the earliest.

Filing for -I485 adjustment of status with a request for employment authorization does not have an established timeline for the employment authorization document (EAD) to be approved although USCIS currently is adjudicating most requests based upon I-485 filings in about 60 days. It remains to be seen what the timeline will look like in the future in a Trump administration. On the other hand, premium processing with its $2,805 fee allows the H-1B petition to be reached for adjudication within 15 business days.

4. Contact the USCIS to check whether the I-485 is approved

A reader asks:
I submitted I-765, I-131, and I-485 applications 7 months ago, but nothing has been approved so far. In early July, a letter RFE came, requiring a medical examination. I did as required, but it has been more than a month, and there is still no news. It is so painful to wait, what should I do?

Alan Lee, Esq. answers,
For the 1-485, 1-131 advance parole, and 1-765 employment authorization applications, you can check the processing times of the office(s) having jurisdiction over them. You can visit the USCIS website page for processing times (Processing Times) and enter your case type and your USCIS office, and the website will inform you of the normal processing times for your type of application. You can also enter the date in which your application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest (https://egov.uscis.gov/e-request/Intro.do) or chat with EMMA (https://www.uscis.gov/tools/meet-emma-our-virtual-assistant) to place a service request to inquire about the status of your case. You can also reach out telephonically to the USCIS Contact Center at 1-800-375-5283 to speak with a contact representative.

5. Proof of non-immigrant intent is still required for I-140 applications under OPT

A reader asks:
I am currently in F-1 OPT status. Before signing the offer with my current company, the recruiter assured me that I could start the green card application immediately after joining. However, the green card application was blocked by the law firm after joining, on the grounds that China’s waiting list is too long and I cannot get a green card (or AOS) in the next 18 months. Another reason given by the law firm is that the F-1 visa is a non-immigrant visa. If I submit an I-140 application, there may be risks in entering and leaving the country. My own research shows that during the Biden administration, I-140 applications are no longer considered to have an immigrant intent, and will only be considered at the I-485 stage. May I ask if it is feasible to start the green card application during the F-1 period?

Alan Lee, Esq. answers,
Many labor certification applications are filed during the time that students are in F-I OPT status. Our office works with a number of companies that are willing to begin the labor certification process, especially where the applicant is eligible for a STEM OPT extension. Kindly note that your assumption that the Ii 40 application is no longer considered to have an immigrant intent must be qualified. Any student still has to prove nonimmigrant intent, although the December 2023 guidance by DHS clarified that F and M sludents must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still he able to demonstrate their intention to depart after a temporary period of stay. The question of nonimmigrant intent in student cases is usually more important when the student goes overseas to interview the visa at an American consulate. En your case, the company and its immigration attorney appeared to have made a decision that it would be too risky to sponsor you for the green card given the amount of time you have left and the long backlog of China horn. Perhaps another organization would be willing to take more risk and believe that you might be eligible for additional periods of stay through some other means.

6. After I-140 is approved, you can enter the U.S. with an O-1 visa

A reader asked:
I am in China and have a question. If I successfully apply for I-140 outside the United States, can I use an O-1 visa to enter the United States to work and wait for the waiting period in the United States? I am not sure whether O-1 can have an immigrant-intentioned visa?

Alan Lee, Esq. answers,
The scenario under which you have an approved I-140 petition and apply to enter the US under O-1 to work while your priority date becomes current may be possible. The O-1 visa is not a dual intent visa, but appears to exist in the gray area in which applicants must be able to show that they have a residence in the home country. We have seen cases in which individuals with approved petitions in the US have been able to apply for O-1 visas successfully at US consulates. So the answer is “maybe”, and of course, any visa application at the US consulate or embassy should be truthful in disclosing that you have applied for an immigrant visa petition.

EB-1A approved, but may have problems coming to the US with a B visa

A reader asks:
I am in China and applied for EB-1A, which was approved in July 2023. I am struggling whether to go to US under B visa first and then apply for I-485 in the United States, or go through the interview at the Consulate General. Which method is faster?

Alan Lee, Esq. answers,
Traditionally consular processing was quicker than processing at USCIS since consular interviews could be arranged as soon as the priority date was current. However, there are now additional variables making it more challenging to predict which is faster. Because of the slowdown in consular processing and lack of officers incurred during the pandemic, many consular cases are not scheduled as soon as the priority dates are current. There is also a preference to schedule immediate relative family cases faster than employment-based cases. With USCIS, applicants previously could not file I-485 applications for permanent residence until the priority date became current. The situation was alleviated when the Department of State instituted Chart A (final action dates) and Chart B (dates for filing). Previously the priority date only related to a final action date. Applicants could now file I-485 applications before the final action date became current under Chart B (when USCIS states that Chart B can be used during the month) with the possibility that cases could be approved as soon as the Chart A priority date was reached. In the same manner as consular processing, however, cases are many times not adjudicated even then because of a lack of manpower or other reasons. Your situation is also unclear for other reasons – if you do not already have a B visa, there is a likelihood that it will not be approved since you have immigrant intent as shown by your approved I-140 petition. In the event that you manage to arrive under B visa, it is difficult to tell when the priority date under Chart B will become current to your date of July 2023. The current availability date of 1/1/23 has not moved since January 2024. You may also have the problem of figuring out how to maintain a valid status in the US if the priority date does not clear within the time that you are allowed to stay in the US under B status. Hope this helps.

1. Regarding I-485J on porting

A reader asked:
I got the I-140 approval for EB-3 from my previous employer, and I changed jobs to my current employer after more than 180 days. After my priority expired, my current employer applied for both the I-485 and I-140, and I-140 approved, but there was no progress on the I-485 after more than 180 days. Now, I suddenly received an RFE, which required I-485j, fingerprints, and medical examination which I already submitted before. What should I do in this situation? If I submit the 485j, will the overall I-485 processing be delayed? Does the I-485j also need approval?

Alan Lee, Esq. answers,
Under immigration rules, where there is an EB-3 I-140 approval from a previous employer which has not been revoked within 180 days, the beneficiary can move to another employer that would go through the labor certification and/or petition process again, picking up the old priority date with the new I-140 approval. I assume from what you said that that is what is being done in your case as you say that the second employer has filed and had approved a new I-140 petition. You also say that the I-140 and I-485 were filed together. If so, the I-485 J request sounds inappropriate, and your attorney or legal representative should so state to USCIS in the RFE response. An I-485J would seemingly only be necessary and must be approved where there is a second employer and an attempt to have the immigration case approved on the basis of switching to the same or similar occupation without taking any other steps such as obtaining a new labor certification or immigrant visa petition. The rule on porting where there is no new labor certification or I-140 petition is that an I-485J application for the new job after I-485 filing should be submitted for the same or similar occupation where the I-140 has been approved and at least 180 days have passed after the filing of the I-485 application.

2. An I-485 application should be filed with full documentation, including form DS-2019

A reader asked:
I must submit I-485 immediately, but found that I could not find my DS-2019 from ten years ago. Ten years ago, I entered the United States as a J-1, stayed for five months, and then returned to my home country for two years. The two-year residency requirement was implemented, so I should not need a J-1 waiver. More than two years later, I entered the United States as an F-1 and am currently on OPT. I am now filing I-485 with the principal applicant, but I found that I could not find the DS-2019 form. I contacted the school I exchanged with before, but no one was working. So I want to ask, will there be any critical issues if I do not attach the DS-2019 to the I-485 initial filling? I consulted a lawyer, and the reply was that I can file without the DS-2019. USCIS may or may not issue an RFE, because this document is ten years old. What I can do is: I can ask the school official first to see if I can find a copy. If you don’t have it, you can write a declaration to indicate that you can’t find your DS-2019. Then, submit your previous J-1 visa to show that you followed the two-year rule. Is that a problem?

Alan Lee, Esq. answers,
USCIS expects that an I-485 application will be filed with full documentation, including form DS-2019. Your plan is to ask the school official for a copy and, if such cannot be found, write an explanation as to why it is not available and what efforts you have made. You should also submit your old J-1 visa and proof that you returned to your home country for two years. I cannot tell you that this approach will work without receiving a request for information, but it sounds reasonable.

3. 80% of the EB-1A petitions submitted are taking 12-14 months to process

A reader asked:
My major is computer artificial intelligence, with more than 10,000 citations and various journal editors and reviewers, and many award-winning papers. I applied for outstanding talent, EB-1A submitted in March this year, and received a receipt, but then nothing happened. I have been waiting until now, and I saw on the Internet that some people were approved in a few days or one or two months. Please tell me, what is my situation?

Alan Lee, Esq. answers,
According to the published processing times of USCIS, 80% of the EB-1A petitions submitted to either processing center handling these petitions are taking a year and more – the Nebraska Service Center 12 ½ months and the Texas Service Center 14 months. The process can be speeded up by submitting the petition with or even submitting after the petition is filed Form I-907 Request for Premium Processing with additional filing fee of $2805 under which USCIS will reach the petition for adjudication within 15 business days. During that time, the agency will either approve, deny, or issue a Request for Evidence or Notice of Intent to Deny.

1. If PERM position changes, there should be some coordination between your attorney and your employer.

A reader asks:
My current position is QA, and I want to transfer internally to SDE position, and the work location remains unchanged. PERM is still in the advertising stage. Some people say that in my case, I will most likely have to go through the PERM process again because my job title and job content have changed. But some people say that I can ask my lawyer to submit a PERM according to the original title, get the PD first, and then submit a PERM with the current title. I wonder if this is feasible. Or can I communicate with the boss of the new group, although the position has changed, the job content should remain the same as before. Do I need to resubmit the PERM in this case? I didn’t dare ask the lawyer, mainly because I was worried that they would notify my current boss. If the group is not transferred, I will be embarrassed.

Arthur Lee Esq. answers:
In this situation, there should be some coordination between your attorney and your employer. If it is in the best interests of your company to keep you on as an employee, then your boss should make all efforts to ensure that your employment there will work for your immigration solution. Therefore, if there is a promotion or a transfer of your job, your attorney should know and work with your employer to make it work for you.
As you are aware, if your job changes at your company now, your ETA 9141 prevailing wage is no longer valid and you will need to put in a new prevailing wage with your current position. Advertising your current position and submitting an ETA 9089 with your old position would be fraud unless your company planned to employ you in your old position upon your receipt of permanent residence. The best advice here would be to get the parties to cooperate with one another, with your input as well, and figure out how to make the company’s needs align with your immigration needs.

2. Leaving your job before I-485 approved, your future N-400 application may face challenges

A reader asks:
180 days after I submitted my I-485, I resigned from my previous company, but before I joined the next company, I received a notification that my green card was approved. The new company said that if I submitted an I-485J, the immigration office would not accept it, and told me that there was no problem. May I ask how to deal with this situation? Will it affect the renewal of my green card or naturalization in the future?

Arthur Lee Esq. answers:
Generally leaving your job that was the basis of your I-485 application soon after or before your I-485 is approved will attract more scrutiny on your green card renewal applications and your N-400 applications. So while you have the green card, your future applications may face challenges because USCIS officers may question whether your PERM labor certification jobs were fraudulent and your PERM employer did not truly intend to employ you in the stated job on your I-140 petition. To mitigate the risks in the future, you could take the following steps. First, you should maintain all documentation of your change of job. This includes your resignation documentation from your PERM employer; and your job offer with your new company including position title and description, salary, and start date. While USCIS will not accept your new I-485J application at this time, you should maintain documentation that your new position would have been one in which an I-485J was approvable—your new position is in a “same or similar” job occupation as the one that you left—and that you just were unable to submit the I-485J due to the timing of the I-485 approval. You should bring any and all of this evidence to an N-400 interview. Second, you may wish to submit your N-400 at a later date than the 5 year green card anniversary since the N-400 form only asks you to disclose your employment history for the previous five years. Third, you may decide to keep your permanent residence card and not apply for naturalization.

3. Standard processing for EB-1A I-140 petitions takes 13 -14 months.

A reader asks:
My major is computer artificial intelligence, with more than 10,000 citations in various journals, and many more editorial review and award-winning papers. In March this year, I applied for EB-1A and submitted I-140. The immigration office also received it and gave me receipt, and then nothing happened. I have been waiting until now, and I have seen others get approved in a few days or one or two months. May I ask, what is my situation?

Arthur Lee Esq. answers:
It appears that the others you heard about who were approved within a couple of months or a few days were either very fortunate in their processing times, or applied for premium processing. Standard processing for EB-1A I-140 petitions are taking 13 months at the Nebraska Service Center, and 14 months at the Texas Service Center. Therefore, it appears that your I-140 petition is still being adjudicated within standard processing times. If you wish to speed up your adjudication, you may apply for premium processing, which costs $2,500 and will guarantee further action on your case (approval, denial, or request for further evidence) within 15 calendar days. The merits of your case do not appear to have much bearing on the speed of your adjudication here. Best of luck to you.

4. NIW and O-1 can be submitted with premium processing at the same time

A reader asks:
I want to apply for an O-1 visa and prepare to apply for a national interest waiver. May I ask, can I submit NIW and O-1 applications both at the same time, and then pay an accelerated processing fee to accelerate both applications at the same time?

Arthur Lee Esq. answers:
Yes it is possible to submit both with premium processing at the same time assuming that you are willing to pay the expenses. To premium process the O-1 petition, you may submit Form I-907 premium processing request to the service center with a payment of $2,805 to ensure that you receive further action from USCIS (decision or request for further evidence) within 15 calendar days. For the EB-2 NIW, you may submit Form I-907 premium processing request with the appropriate service center along with payment of $2,805 to ensure that you receive further action with USCIS (decision or request for further evidence) within 45 calendar days. Good luck to you.

 

1. USCIS can take any action such as issuing notices for information or denial prior to the priority date becoming current

A reader asks:
My I-485 suddenly changed to “Case Remains Pending”. What happened? I applied for EB-2 in October 2023, downgraded to EB-3, and applied for I-485 at the same time, and sent in the medical examination materials. In late November 2023, I took fingerprints, and finally waited until the end of March 2024. The I-140 downgrade was approved, but I received an RFE for the medical examination. In April, I resubmitted the medical examination materials, and the status remained at NBC for a long time. In July, the status was updated to Case Remains Pending. The PD is June 2020, and the table A is current, so why is it pending? A week after July, I received a letter from USCIS saying that the visa number is gone and the case has been transferred to NBC again. What should I do?

Alan Lee, Esq. answers,
I will assume that you are a native of China for purposes of the question. With a priority date of June 2020, and with the downgraded I-140 approved in March 2024, there was a window of time through September 2024 where final visa availability for China born was open to those who had filed labor certification applications or I-140 petitions prior to 9/1/20 to have their pending I-485 applications approved. However, the visa bulletin changed in October 2024 to reflect availability date for EB-3 China of 4/1/20. I do not know what happened with your case previously and why it was not acted upon between March-September 2024, but at this time, the visa number is no longer available, and you will have to wait until it once again becomes available to your priority date before USCIS can approve your downgraded application for adjustment of status. (I note that USCIS can take other action such as issuing notices for information or denial prior to the priority date becoming current if it decides that those actions are appropriate).

2. You are allowed to take the priority date with you if new employer successfully applies for a new labor certification and/or I-140 petition

A reader asks:
I am a PD in August 2022, and I applied for EB-2. I don’t know if the new fiscal year will make a big leap forward, whether the deadline will be met or downgraded. Now, I have an offer and can change jobs, but the new company does not have a batch, and I need to go through all the application procedures again. At present, it will take at least one and a half years to get I-140 again. The current company culture is a bit toxic. I can work until the end of the year, but it is not very stable and the career development opportunities are not very good. The new company should be good and very stable. May I ask, what should I do?

Alan Lee, Esq. answers,
I will assume that you are China born which in the month of December 2024 has EB-2 availability dates of 3/22/20 and 10/1/20 on Charts A and B of the visa bulletin. If the I-140 petition has already been approved with a priority date of August 2022 and the company has not taken steps to revoke the approval within 180 days, you are allowed to take the priority date with you if another employer successfully applies for a new labor certification and/or I-140 petition. The timeline for your final immigration would not fit within your statement that you can stay until the end of the year at your current company. Therefore, if the new company seems good and is very stable and is willing to take on your processes for permanent residence, you may certainly wish to switch to the new company.

3. A common reason for advance parole denial is if the applicant left the US prior to the time that the advance parole application was approved

A reader asks:
My I-765 was approved on July 25, and I-131 was approved on July 27, which should be a combo. However, on July 29, I-131 became reopened. What does this mean? Was it approved or not? What is the reason for reopening?

Alan Lee, Esq. answers,
It is in the discretion of USCIS whether to issue a combo card or not. If you have a combo card, the travel privilege will be indicated on the bottom of the EAD. In such case, it would be unusual for USCIS to reopen a request for advance parole once it is approved. USCIS can generally reopen an adjudication if there is new evidence indicating that the benefit should not have been given. A common reason for advance parole denial or revocation is if the applicant left the US prior to the time that the advance parole application was approved.

4. Many factors are taken into account, and a $20,000 decrease is a factor to be looked at

A reader asks:
I have submitted my I-485 and recently received an offer base that is 20,000 yuan less than the base of the old company. I would like to ask, if I accept the offer and submit I-485J through the new company, and the salary is 20,000 less than the old company, will it affect the approval of I-485?

Alan Lee Esq. answers,
You would be relying upon a transfer of your case under I-485 J, which allows the labor certification and I-140 petition to remain valid if the I-140 petition is approved and the I-485 application pending 180 days, and the new job is in the same or similar occupation. Many factors are taken into account including job duties, SOC codes, job title, of which a $20,000 decrease is a factor to be looked at. It should be noted that $20,000 less when an individual is making a salary of $150,000 is less concerning than when the individual is making $50,000 or so under the labor certification.

5. On EB-1A case, a magazine is asking you for money in order to interview you is not something that most recognized magazines would do.

A reader asks:
I am a computer professor at a 985 university in China. I am preparing to apply for EB-1A and am preparing the materials. An editor of a scientific magazine in China wants to interview me, but charges 20,000 to 30,000 RMB. This magazine is considered a national magazine. I don’t know if this is useful for my EB-1A application? Is this considered media coverage?

Alan Lee Esq. answers,
The regulations on media state that it must be published material about you in a professional or major trade publications or other major media relating to your work in the field for which classification is sought. USCIS generally looks to see a magazine circulation compared to other magazines in the field and who is the intended audience of the publication. The fact that the magazine is asking you for money in order to interview you is not something that most recognized magazines would do. You may want to further look into the bona fides of the scientific magazine to determine whether it is truly a respected publication in China. A big boost in whether it would really convince USCIS is if it has international renown.

6. USCIS is asking for separate checks for each of the benefits that you are requesting

A reader asks:
I submitted I-485, I-131 and I-765 two months ago. So far, the lawyer has replied that only the signature of FedEx has been received. It has been almost 2 months, and the check has not been cashed. Is this normal?

Alan Lee, Esq. answers,
It is slightly unusual that USCIS has not receipted your applications and it has been almost 2 months. It is not unheard of, however. Is there a chance that USCIS is getting ready to reject and return your applications? Possibly. Other than through the check not having been cashed, your attorney could have received indication from USCIS of an acceptance if he or she possibly sent in G-1145 E-Notification of Application/Petition Acceptance with your package. I also note that you mention “check” and you and your attorney should know that USCIS is asking for separate checks for each of the benefits that you are requesting.