Category: Q&A

1. Filing an I-485 may be viable as long as you have maintained legal nonimmigrant status

A reader asks:
I filed for I-140 two months ago without premium, and it’s still pending. Unfortunately, I was just laid off. Company policy says they won’t withdraw the I-140, but if there’s an RFE, the company won’t respond. If everything goes well, it may still be approved. Now, that PERMs are often getting denied, I’m wondering: If I return to the same company a year later, and my I-140 is still pending and PD is current, can I expedite the I-140 and file I-485?

Alan Lee, Esq. answers,
The scenario that you suggest of returning to the same company a year later when the I-140 is still pending, the priority date is current, and at that point expediting the I-140 and filing an I-485 adjustment of status application may be viable as long as you have maintained legal nonimmigrant status and the company is willing to continue sponsoring you for permanent residence because it has a permanent full-time position for you consistent with the terms of the labor certification.

2. USCIS processing time for AP, 80% of cases exceeds a year

A reader asks:
I filed my I-485 application concurrently with my EAD application in early October of last year; however, I did not apply for Advance Parole (AP) at that time. My application was approved last December, but for various reasons, I still did not apply for AP. At the time, I estimated there was a high probability that I would need to return to my home country sometime during the first half of this year. I also still held a valid H-1B visa at that time. Now that my H-1B visa has just expired, should I apply for AP? I’ve heard that current processing times for AP are approaching one year; given this, is there any practical point in applying for it now?

Alan Lee, Esq. answers,
I assume that the application that was approved last December was for the EAD and that your I-485 remains pending. The advance parole is a safer way to travel in your case as it does not entail interviewing with a US consular officer if it is the visa that is expired, but not the H1B status itself. If the status is expired, the only choice for leaving would be advance parole. During the Trump administration, temporarily leaving the US is not recommended for nonimmigrants for nonemergency reasons because of the heavy vetting at the consulates and airports. You can apply for advance parole now, but note that the published USCIS processing time for 80% of cases exceeds a year. (For the readers, this timeline is not applicable in many situations in which USCIS receives concurrent applications for both EAD and advance parole and chooses to process both at the same time).

1. If you are traveling under advance parole, you are not required to have a H-1B stamp

A reader asks:
I scheduled an H-1B interview in mid-to-late August.  My H-1B is expiring, and I can’t file for extension until early August. I plan to enter the US using advance parole. Do I need to get H-1B stamped abroad? If I get a NOID or am denied and then go abroad to get H-1B, will it be too late?

Alan Lee, Esq. answers,
If you are traveling under advance parole, that is separate from H-1B and you are not required to have a H-1B stamp in your passport to return. I do not understand why you would go abroad to get a H-1B stamp if you are denied or obtain a notice of intent to deny (NOID). Perhaps you are thinking that you will overcome the NOID and the denial will pertain to maintenance of status in the US rather than the merits of the H-1B petition itself. In that case, you would likely have to reschedule the appointment at the consulate as the timing would likely not work out and the DS- 160 used to schedule the appointment would no longer be accurate.

2. Why did I not receive a receipt for my filed application?

A reader asks:
I filed for expedited NIW processing two months ago and still haven’t received the receipt notice. I first submitted in December 2025, but it was returned in Feb due to an expired form. I corrected it and resent the same day. Until now, I still haven’t received anything, and the check hasn’t been cashed. I did it myself and was later had a lawyer review the package. The lawyer said it looked fine. What could be wrong?

Alan Lee, Esq. answers,
There are a number of reasons for which you may not yet have received the receipt notice after returning the package with the correct form following rejection. You have said that you had a lawyer review the package, but a lawyer who is not working on the case may not give as much attention to it as one on which he or she is actually doing the work. You may have sent the package to the wrong address or given the wrong amount of payment or made mistakes on the forms. We have also heard recently that USCIS has not been particularly speedy in working on resubmitted cases. Hope that you hear something soon.

1. If a PERM were to begin today, it might not be completed within 21 months

A reader asks:
I just received an email from my company stating that our PERM process is being temporarily suspended due to current market conditions, with no definite timeline for resumption. My Prevailing Wage Determination (PWD) has already been approved, and we are currently in the recruitment advertising phase—which began in March—so it is highly likely that we will be unable to proceed with the standard filing. My H-1B visa is set to “max out” (reach its six-year limit) in October of next year. When I initiated the green card process, the company agreed to sponsor me only under the EB-3 category, as EB-2 sponsorship is reserved exclusively for employees at the Senior Manager level or above. My employer is a global consulting firm. Currently, the business within my specific department remains stable, my individual performance is strong, and I am leading a small team. I never expected such an abrupt turn of events. Could you please offer any viable strategies or options I might consider?

Alan Lee, Esq. answers,
Under the circumstances where it appears that your H-1B max out is next October (21 months from the date of this answer), and you seem fairly certain that filing on schedule will be impossible due to the PERM processing being paused by the company with no clear restart date, you can either try to further discuss this with the company, or if truly dissatisfied, attempt to move on to another organization with the understanding that it will begin the PERM process for you as soon as possible. If a PERM labor certification application was to begin today, it is highly doubtful that it would be completed within 21 months even if everything went well. But perhaps with your company or another organization, you could make plans as to how you could cover the time gap in status under which you would not be covered by an H-1B approval. Good luck.

2. You would violate H-1B status if you worked with the EAD for another employer

A reader asks:
I used to think once I used my EAD, I could not return to H-1B. But ChatGPT told me that once I re-entered the US using the combo card, I would become a parolee and can work for my employer.  If I lose my job, the 60-day H-1B grace period doesn’t apply.  I can even collect unemployment benefits or work for another employer using EAD. And if I want to go back to H-1B, an employer just needs to file a transfer.  So I can freely use EAD during I-485 pending and not worry about getting back on H-1B if I-485 is denied.  Is this understanding correct?

Alan Lee, Esq. answers,
No, unfortunately your understanding is not correct as you would be in violation of H-1B status if you worked with the EAD for another employer. The USCIS guidance appears to allow H-1B holders to reenter the US under parole and then file for extension of H-1B status inside the US through the same employer. It does not contemplate free open market EAD employment and then being able to switch back to H-1B status inside the United States.

3. An individual self-petitions for the NIW, the case can continue even the individual has changed jobs.

A reader asks:
My National Interest Waiver (NIW) petition—which was sponsored by a previous employer—was approved. However, I subsequently changed jobs. Do I need to file a new I-140 petition now? I saw a post on LinkedIn claiming that one must re-file the petition independently in such cases. Could you please confirm whether this is true?

Alan Lee, Esq. answers,
Where a previous employer sponsored an approved NIW and the beneficiary changes jobs, a new I-140 petition must be filed. Where an individual self-petitions for the NIW, the case can continue even where the individual has changed jobs.

4. It has usually taken much time in the past for the agency to work on a returned case

A reader asks:
I applied for an EB-1A visa, and my I-140 petition has already been approved. I proceeded to the U.S. Consulate in Hong Kong to apply for my immigrant visa. In January, I attended my interview at the Hong Kong Consulate but was refused on the spot. My status was updated to “Refused,” and in March, it was updated to “Returned to NVC.” Does this constitute a Notice of Intent to Revoke (NOIR)?

Alan Lee, Esq. answers,
Where a US consulate updates case status to “Returned To NVC”, it means that the consulate has or will send your case back to USCIS. An Immigration officer will look over your case along with notes from the consulate and either reaffirm the decision or send you a notice of intent to revoke. It should be noted that these are low priority cases with USCIS, and it has usually taken much time in the past for the agency to work on a returned case. Good luck.

1. You recently changed jobs, and you may wish to push the company to begin your PERM application as soon as possible

A reader asks:
I recently changed jobs, and my immigration application’s priority date (PD) is early January 2023, and Chart B is about one year from becoming current. Now, PERM seems hard to process at the company, and the default path is NIW. I only have a master’s degree and nothing else, just 5+ years of experience in AI (Artificial Intelligence) and ML(Machine Learning), and my current position is also in the MLE (Machine Learning Engineer) field. However, my lawyer said that the risk of expedited processing is significantly higher.   The company is likely to support both PERM & EB2 – NIW. I feel NIW-EB2 approval odds are already low. If my first NIW application is denied, should I immediately push to start PERM?

Alan Lee, Esq. answers,

I assume from your fact pattern that you already have an approved I-140 petition with 2023 priority date from your prior job. As you are acknowledging the difficulties of the NIW petition and your lawyer is telling you that the risk of expedited processing is significantly higher, that shows a lack of confidence in both of you in the merits of the NIW case. As such, unless there are factors of which I am not aware, you may wish to push the company to begin your PERM application as soon as possible and not wait until the NIW is denied.

2. I submitted my I-485 application recently and was laid off today. What should I do now?

A reader asks:
I was laid off today; at least the suspense is over. I submitted my I-485 application this January, and there are less than three months left before the 180-day mark. Our team just had a massive layoff, cutting half the headcount in half, and I was one of those let go. I have no news on the green card application, and haven’t even received my I-765 or EAD yet. I switched to this company and started a new PERM, filing the I-140 and I-485 concurrently, both have been pending for under 180 days. My 6-year H-1B period is used up and I can now renew only year by year.  I’ve heard that in this situation a new employer can’t keep extending the H-1b and can only wait for the green card or EAD to be approved.  What should I do now? Could I negotiate with the company to pay out the severance gradually through payroll each month, so that if USCIS interviews me, I can show pay stubs and pretend I’m still on the job?

Alan Lee, Esq. answers,
Unfortunately, where the I-140 petition has not even been approved and an individual loses the position with three months to go before the 180 day mark, we cannot state that the matter can be salvaged, as the employer clearly has no intent any longer to offer a permanent full-time position. You say in your fact pattern that you switched to this company and started a new PERM, and that raises a question as to whether you already have an I-140 approval from a prior employer. If so, you may be able to use that once with a new employer to gain a year with a new H-1B while contemplating your next steps.

1. If the NIW was company-sponsored, losing your position may have more serious consequences

A reader asks:
I recently filed my I-485 application, but my company’s business operations have become somewhat unstable. I am concerned that potential unemployment might negatively impact my I-485 case. My question is: if my I-485 application is based on a National Interest Waiver (NIW) petition, am I permitted to be unemployed while the application is pending?

Alan Lee, Esq. answers,
Assuming that the NIW is through self-petition, losing the job in the I-485 stage may not tremendously affect the application although you may still have to show that you remain committed to the type of work upon which the NIW petition is based. If the NIW was company-sponsored, losing your position may have more serious consequences although you may still be able to port your case to a same or similar position if the I-140 has been approved and the I-485 application pends for 180 days or more.

1. Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas

A reader asks:
A friend’s I-485 is currently pending, but already received both EAD and I-131 (separate cards), and is just waiting for his priority date to become current. He is currently working on an O-1 visa (without a visa stamp due to change of status within the U.S.) and recently got selected for H-1B.  His lawyer said he must change to H-1B status in October and only then can he travel abroad for stamping.  If he leaves the U.S. before October while still on O-1, will USCIS consider that as abandoning the I-485? Even with advance parole? Also, they he cannot travel on O-1 before October, can he go out after October, get the H-1B visa and return using it?  Would that invalidate the I-485?

Mr. Alan Lee, Esq. answers,
Under the current rules of the $100,000 H-1B payment rule applicable to persons applying for H1B visas overseas, an applicant must change status in the US prior to going outside the US to escape paying the fee. That is why your lawyer is insisting that you remain in the US until October because that is when the change of status becomes effective. If afterwards you leave the US, such would not be considered an abandonment of the I485 since H1B holders can leave and return to the US during the pendency of I485 applications. Your friend could also leave under advance parole, and that would not invalidate the I485 application. If your friend leaves the US before October while still on O-1, USCIS would consider that as abandoning the I485 if attempting to come back in on the O-1 petition.

2. You can only file I-485 straightaway if both the job location and the legal entity are unchanged

A reader asks:
Because the PERM labor certification for my new company has been significantly delayed, yet my Priority Date (PD) is currently “current” (available), I recently reached out to my previous employer and received a job offer. However, the work location has changed (moving from San Francisco to New York). May I ask: under these circumstances, can I use my original I-140 petition to directly file my I-485 application? I understand that the prerequisite for directly filing an I-485 based on a previous petition is typically that both the work location and the legal entity (employer) remain the same. Is it possible to directly file an I-485 if the work location has changed, but the legal entity remains the same?

Alan Lee, Esq. answers,
Unfortunately, what most people say is correct – that you can only file straightaway if both the job location and the legal entity are unchanged. Perhaps your former employer is still able to offer you a position in San Francisco. If so, it would declare on form I-485 J supplement, “Confirmation of Valid Job Offer or Request for Job Portability under INA Section 204 (J)” that it has an existing valid job offer for you in San Francisco. If you work for the company in San Francisco for a period of time after obtaining permanent residence and the company at a later point decides to transfer you to New York, that is another story.

1. Paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days

A reader asks:
My company helped me file an EB-1A petition under Premium Processing (PP), but we subsequently received a Request for Evidence (RFE)—the deadline for our response is in May. Since the company is the petitioner, the preparation process for much of the documentation has been opaque to me. I feel that the law firm collaborating with the company is particularly unreliable and that the application they prepared is of very poor quality. However, they are unwilling to withdraw the petition and insist on preparing the RFE response themselves. I simply cannot bring myself to trust them. My question is: can I now file a new petition on my own (DIY)? In this new filing, I would act as the petitioner; I would personally draft the petition letter and compile the exhibits, which would presumably differ from the materials prepared by the company. I intend to use Premium Processing for this new filing as well. Consequently, the timelines for the two cases would overlap—essentially, one case would be pending an RFE response, while the other would be a brand-new submission. The company has refused to show me the actual application package they prepared; from start to finish, I merely provided them with certain supporting documents and recommendation letters. Therefore, I am confident that if I handle the filing myself, my petition letter and exhibits will definitely differ from the ones they wrote. Since the petitioner would be different, there would be distinct differences between the two cases. Would this be considered a “duplicate filing”? (Note: I already have a pending NIW petition, as I anticipated that the EB-1A petition filed by the company would likely be denied.)

Alan Lee, Esq. answers,
It appears that you have two balls in the air and you want to put up a third. This could prove confusing, but I cannot say that putting up a personal EB-1A petition for yourself under premium processing would not work if you are truly qualified for the category. Please note that paying the premium processing fee does not guarantee that USCIS will actually reach the case within 15 business days. Where a case is complicated, USCIS may well hold onto the case and begin adjudicating it in its good time. Afterwards, you would likely have to request back the premium processing fee as the agency has a history of not automatically refunding it if it does not reach the case within the time limit. Also that USCIS may reach a case within 15 business days, and that it would fulfill its obligation under premium processing by issuing a request for evidence or notice of intent to deny or approval or denial.

2. How can one successfully apply for an EB-1A visa?

A reader asks:
I hold both a bachelor’s degree and a Ph.D. from one of China’s top two universities, with a brief master’s degree program in continental Europe sandwiched in between. I currently work in the investment banking division of a securities firm, focusing on IPOs and M&A transactions; however, I have not published any academic papers or engaged in other similar scholarly activities. I am considering applying for an EB-1A (Extraordinary Ability) visa. Given my current profile and circumstances, do I have a realistic chance of success?

Alan Lee, Esq. answers,
Generally speaking, a person with your bare-bones fact pattern would not seem to be a great candidate for the EB-1A extraordinary alien category, and as you are aware, the current climate is not encouraging. We suggest that you look through all 10 criteria of the EB-1A category, and pick out at least three that you can say that you qualify under. Then you may wish to make an appointment with an immigration lawyer familiar with EB-1A filings and consult him or her with your portfolio or a detailed resume. Just from your facts, one cannot say definitively whether you could or could not qualify.

Someone would rarely ask for another EAD when he/she has one valid until 2030

Reader asks:
My H-4 extension has been approved, but I received an RFE from USCIS for my H-4 EAD application. It says I already have an EAD valid until 2030 (this is the I-485 EAD I received a few weeks ago). They are asking why I am applying for another EAD (under the C29 H-4 category). I’m confused because the notice only gives me three options to choose from:

1. The EAD card was lost or damaged.
2. The information on the EAD card is incorrect and needs to be corrected;
3. I want to withdraw this current application because I already have a valid EAD.

So, does having an I-485 EAD mean I can no longer apply for an H-4 EAD extension? Or did USCIS make a mistake by not recognizing that these are two different types of EADs? I want to write a letter to explain that this application is for the H-4 EAD because I don’t intend to use the I-485 EAD for now, and I don’t want to choose any of the three listed options. Is it okay to respond like this?

Mr. Alan Lee, Esq. answers,
We have seen situations in which individuals have held 2 EADs, but it is rare that someone would ask for another EAD when he or she has one valid until 2030. USCIS may be concerned about security (whether someone other than you could somehow use one of the cards) or if there is any problem with your I-485 application. Your explanation is probably as good a reason as any at the present and it will be up to USCIS whether it will issue the H-4 EAD.

If I am not selected in the H-1B lottery, can I apply for PERM?

Reader asks:
My husband found a job and the company helped apply for H-1B, but he hasn’t been selected in the lottery for three rounds. We are feeling hopeless.  I suddenly thought – can we skip the H-1B lottery and have the company file a PERM instead, while staying in the U.S.? My husband was born in South Korea, so there should be no backlog. Can someone on TN status directly file a PERM?

Mr. Alan Lee, Esq. answers,
Unfortunately, H-1B registration is not guaranteed, and it is not unusual that individuals can go multiple rounds and years in the H-1B lottery without being selected. It is best that individuals keep trying as we have seen persons who have failed multiple times finally be selected. If selected, H-1B holders can remain in the US for up to six years and perhaps even longer under such status. On your specific questions, the company can file a PERM application while you and your husband are staying in the US. Your husband would have to maintain legal non-immigrant status if he wishes to adjust status at the end of the process. A person on TN status can directly file for PERM, but that individual should be aware that travel outside the US even to Canada during the process may give him problems on entry  as as there is stricter vetting at the borders and TN unlike H1B requires non-immigrant intent.

1. Labor certification applications can be restarted at any time.

A reader asks:
I was just informed today that the labor market test failed, so the PERM process will need to restart. I’ll talk to the lawyer later for more details.  What are the common reasons for failing the labor market test? If I need to restart, do I have to wait 6 to 12 months? I’ve been at this company since graduating from university, and previously relocated to Canada for a year before returning to the U.S. this year, so the work experience used for the PERM comes from my time at the Canadian office.

Could the failed labor market test be related to that work experience? Or could it be related to the job location? For example, are there differences between the San Francisco Bay Area and New York in terms of passing the labor market test? I’m considering moving to New York next year.  If the PERM location is New York, would it be easier to get approved?

Alan Lee, Esq. answers,
I am sorry to hear that your labor certification market test failed. Common reasons are typographical errors (the PERM process is pretty strict on errors on the forms); the recruitment may not have been done correctly; there may have been able, willing, qualified, and available US workers that the employer was not able to screen out for valid job related reasons; the applicant’s qualifications may not have matched what was required on the labor certification application, etc. Generally speaking, a labor certification application can be begun again immediately and you generally do not have to wait 6 months or more to begin a new labor certification. If the labor certification requirements were only matched by you in the same company’s Canadian operation, such could be a reason for having a problem with the Department of Labor as experience gained in the same company should be in a position which is substantially different from the position being offered. On the question of San Francisco or New York, the question may be whether there are more qualified candidates who would be interested in a job like yours in San Francisco or New York. That goes to advertising the position and the company screening the candidates. If the position is remote, the test would be national rather than in Just the local market.

2. The H-1B extension petition can only be filed within six months of its expiration date.

A reader asks:
I checked the Department of Labor website, and the average PERM wait time is 17 months, so it’s unlikely I’ll get it within 12 months. I have two questions:

1. Based on my situation, can I apply for a 1-year H-1B extension before it expires? If so, when is the earliest I can apply?
2. Can recapture time be filed separately, or must it be submitted along with the H-1B extension?

Can I file a new H-1B extension before May 2026? I was outside the U.S. for almost two months during my H-1B six-year period, so those two months should push my H-1B expiry date further. My H-1B expires in May 2026, and my PERM was filed in May 2025 (PD). Although my PERM was filed within 365 days before my H-1B maxes out, it was only by one day. I thought I could apply for a one-year extension in May 2026 just because the PERM was filed 365 days before. But when I reread the AC21 rule, it seems I might not be eligible until 365 days after the PERM filing date, which would be May 2026.  If that’s true, I am worried I might fall out of status. What should I do?

Alan Lee, Esq. answers,
Based on your situation, you can apply for a one-year H-1B extension before it expires. The beginning of the requested time must be after the labor certification application has gone 365 days. The H-1B extension petition can only be filed within six months of its expiration date. You can also file to recapture time separately, but that would have to be in the form of an H-1B extension petition.

3. EB-1A and EB-1B can be submitted simultaneously if the contents of one do not contradict the other

A reader asks:
I have prepared all the materials and drafted my I-140 petition letter for EB-1A. I originally wanted to go through my employer’s EB-1B petition, as it seemed more stable.  However, my company’s law firm is moving too slowly. Should I file EB-1A on my own first? Can EB-1A and EB-1B be filed simultaneously?

Alan Lee, Esq. answers,
Both EB-1A and EB-1B can be filed simultaneously, but the contents of one cannot contradict the other. If you wish to file the EB-1A petition on your own, please ensure that it will be consistent with the claims made on the EB-1B petition.