Category: Q&A

1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B

I am a PhD in Tiankeng major (which is the collective name of Chinese netizens for the four majors of biology, chemistry , environment , and materials ( biochemical and environmental materials ), and I switched to computer field in 2019. In 2019, I won the H-1B lottery and went through several companies. Unfortunately, every time when my PERM was about to be approved or ready to file PERM, I was laid off (twice), and never filed PERM. My current situation is that my company successfully filed the PERM for me in March of this year, but I am not sure whether I will be laid off before the I-140 is approval. Now I want to apply for NIW-EB-2, and my articles were cited 23 times at the journal/conference and had 160 reviews1. My questions are: How do I apply for NIW which can extend my H-1B? My H-1B will be in the fifth year in October 2024. When do I need to get my PERM’s I-140 approval to renew my H-1B? Will it be before October 2024 or October 2025? When I got the approved I-140, I would want to leave the company, but will the company withdraw the I-140 application if I leave? At present, the PERM of all companies, large and small, has basically stopped. what do I do?

Mr. Lee answers,
Whether USCIS will approve your NIW EB-2 application depends upon the officer’s judgment of your qualifications in light of the precedent decision, Matter of Dhanasar, with factors whether your endeavor has both substantial merit and national importance; whether you are well-positioned to advance the endeavor; and if on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. In order to renew your H-1B past the standard six year limitation, you would either have to have 365 days pass since filing the NIW or labor certification application, or if you are from a country with backlogged quota, have an approved I-140 petition. The time to begin a labor certification if everything goes well is approximately two years prior to the six-year expiration due to the time required to obtain the prevailing wage determination and for the labor certification to pass through the Department of Labor. If you obtain an I- 140 approval, the petitioning organization generally has 180 days to revoke the petition. If such is done within 180 days, the priority date is usually preserved, but the petition is not valid for extending H-1B status past the six-year limit.

2. PERM application related skills depends on the employer’s requirement

I graduated this year, and I am lucky to get an offer as a junior front engineer at the beginning of the year. The company is willing to immediately to get started with PERM EB-2 for me. A few days ago, the lawyer contacted me and gave me a verification of skill. The letter template only lists a few points and says it cannot be changed. However, I feel it is very unreliable. I worry more about it will attract a large number of local people to apply when the job is advertised. Have you tried using this small amount of simple skills, people have successfully passed the PERM labor certification in the end? Would it be better to write more skills?

Mr. Lee answers,
It appears from your fact situation that you have already gone over all of your skills with the attorney and he or she has given you a template of an experience letter based upon what he or she believes are the relevant skills to be required in the labor certification application. Please note that the education, experience, and other skills in an application are based upon what the employer requires and not necessarily what the applicant possesses. For example, an applicant may have 20 different kinds of skills, but the employer only requires three or four of them as relevant to the offered job. The Department of Labor requires the employer to list its minimal requirements for the position. If you believe that the attorney is failing to recognize relevant skills for the position taking the employer’s needs into account, you should contact him or her to explain their relevance and why they should be included as requirements in the PERM application.

3. PWD can be used for the same position and multiple people

I am applying for employment green card under EB-2. My lawyer told me that my job description and background were very similar to another colleague in the company, and suggested to use his prevailing wage determination (PWD) directly, saying that way, I could skip my job posting and could start 9089 form directly. Is it possible to do like this? That means the PWD follows the job instead of the person. If I meet the same job requirement, I can skip the job posting process?

Mr. Lee answers,
Labor certification applications are for individual applicants –that being said, a prevailing wage determination (PWD) can be used for multiple individuals having the same position with the same requirements. In such case, the attorney or other preparer of the application must ensure that the job is the same, the offered wage to the alien is at least at the prevailing wage level, and that the alien’s education, work experience, and any special requirements of the ETA-9141 prevailing wage form are met by all applicants using the prevailing wage determination. If any parts of recruitment pursuant to the prevailing wage determination have been completed, they can usually be used in connection with the ETA 9089 PERM application forms of other individuals. Recruitment is only good for 180 days from the date of PWD issuance where the recruitment was begun prior to the date of issuance, or 180 days from the date of first recruitment if recruitment was begun after the PWD was issued. So you should ensure that your case fits within the parameters of the ETA 9141 and that it is submitted on time in the event that you and the attorney choose to use the already issued PWD for your case.

4. EB-2 and EB-3 can apply at the same time

Currently, I have the I-140 employment-based immigration approval under EB-2, but the priority date is still many years away, and it could take three to five years. Recently EB-3 category’s priority date has moved forward. Is it possible to file an EB-3 I-140, to keep EB-3 and EB-2 at the same time, instead of downgrading? In this case, whichever comes first can be submitted first.  Are there any risks in doing so?

Mr. Lee answers,
It is entirely possible to file another I-140 under EB-3 even if you already have an approved I-140 under the EB-2 preference category. What you are asking is commonly done, and we have done so many times for our Chinese and Indian clients. When the priority date becomes current for one of the categories, you could file for adjustment of status under the petition that has visa availability. We do not see the risk in doing another petition unless the petitioning organization can no longer support the prevailing wage of the labor certification (we assume that this is a labor certification based case).

5. The old and new companies overlap for 1 month, you should answer truthfully

After being laid off, I continued to stay on payroll for three months. During that period, I found a job, and there was a one-month overlap between the last day of the previous employer’s payroll and the first day of the new company. In this case, what date should I put down on the form as the last day of my former employer when the new company applies a green card for me?

Mr. Lee answers,
There is no easy answer to your question. The issue you are likely attempting to address is how to handle the 60 day grace period that H-1B holders are allowed to find another organization and have that organization file a H-1B transfer petition. Did your old company consider the layoff to take effect at the beginning of the 90 days or sometime later? Did your old company send a letter of termination immediately to USCIS or did it do so later? If you are relying upon a statement of prior experience from the old company, what dates will it attest to as your time of employment? Generally, the best policy is honesty taking the above or any other factors into account.

 

1. Receiving the immigration letter does not mean that the I-485 will be approved

I am now in OPT status. I submitted my immigration application and the priority date is September 2022. At the end of last year, I sent my I-485 to USCIS, and I went for fingerprinting in March this year. I recently received a letter from the Immigration Bureau asking me to submit some additional materials. Does this mean that my case is being handled? I don’t think my priority date is current yet, and my I-131 and I-765 application are still pending. I just want to know when can I get my combo card? That way I can go back home.

Mr. Lee answers,
Receiving a request for information from USCIS in an I-485 application means that someone at the agency is looking at your case, but that does not mean that your case will be approved since the priority date is not current. Cases cannot be approved before immigrant visas are available. It is difficult to say when your employment authorization and advance parole applications will be approved. Your fact situation does not say when you applied for the benefits, but I will assume for purposes of the question that you applied for them also in September 2022. At that time, USCIS had decoupled applications and was no longer issuing combo cards. (We have recently seen the resurrection of such in a few recent I-485 cases requesting both benefits, which is a good sign). Current USCIS published processing projections for the vast majority of its cases by service center are the following:

Advance Parole: Texas Service Center – 17.5 months; Nebraska Service Center – 11 months; California Service Center 18 months; National Benefits Center – 11.5 months; Vermont Service Center – 8 months.

Employment authorization: Texas 17 months; Nebraska 17 months; California 18.5 months; NBC 11.5 months; Vermont 15 months.

It may unfortunately take some time for USCIS to issue you these benefits. I note that we have had some recent I-485 filings in which advance parole/employment authorizations came quickly and even in the form of combo cards. While grateful for these cases, we believe that USCIS should seriously work on its backlogs.

2. The status of the case does not reflect the processing status

Yesterday I received an update from USCIS that my I-765 card was issued. But the strange thing is that I-131 on myUSCIS shows case closed, but the status on I-485 and I-130 are still under review. Is this normal? This morning I received 5 more emails from the USCIS, saying that they are going to process my case, but the online case status is still the same as yesterday. Is my I-485 going to be approved? Or is there a combo card first?

Mr. Lee answers,
USCIS does not generally close out an I-131 advance parole request when related to an I-485 adjustment of status to permanent residence filing unless the I-485 is being approved. We have had situations in which I-765 employment authorization requests have been approved when the I-485’s have been on the cusp of being approved. (We recently had such situation about a month ago). It may very well happen that you will receive unofficial and later the official notice of the I-485 approval. The online case status system does not always reflect current conditions in a case’s processing. Whatever is placed on the online case status system is only as current as the individual officer or clerk inputting information into the system.

3. Engineers worked in a China state owned enterprise usually do not affect immigration

My I-140 petition has been approved and I can now file the I-485 form. I looked at the form and found that I had to fill in my previous overseas work experience, even if it was 5 years ago. I used to work in a state-owned enterprise. Does this work experience affect the I-485 application?

Mr. Lee answers,
Form I-485, Page 5, Part 3 requests employment history for the last five years whether inside or outside the US. Page 6 of Part 3 requests that you provide your most recent employment outside of the US if not already listed. So an applicant is obligated to provide the information of most recent non-US employment even if not within the past five years. The information can be used to check back on representations made by applicants when they filled out visa applications to the US in the past. Depending upon the level of the position, work experience in a state-owned enterprise in China may raise questions of whether the applicant was or is a member of the Communist Party. While an engineer in such an enterprise may not raise eyebrows, a director in the enterprise could cause questions to be asked.

4. Different immigration categories have different processing times

I would like to know how the Immigration Bureau will give the number? Is it the date according to Priority Date? Or the date the I-485 was filed? For example, many of the I-485s in front of and behind the number MSC2390198XXX show card making or approval. Shouldn’t the I-485 be processed according to the smoothness of the number? Can you still jump in line?

Mr. Lee answers,
A USCIS case number is assigned at the time that an application or petition is receipted by the agency. Case numbers are chronological by service center, e.g. Vermont Service Center (VSC), California Service Center (WAC), National Benefit Center (MSC). The first two numbers indicate the year and the rest the chronological number of the application receipted during the year. The priority date of cases for family-based petitions is the date of receipt while priority date for employment based cases is either the labor certification receipt date (where a labor certification is involved) or receipt date where there is no labor certification, e.g. EB-1, NIW. Cases are generally processed chronologically, but they are processed chronologically according to the type of case. There are different processing times for the different categories of family-based and employment-based cases. Expediting a case out of line can be done where USCIS offers premium processing for a certain fee. Without such, it is very difficult to expedite an application or petition. Under USCIS guidelines, it may expedite a benefit request if it falls under one or more of the following criteria or circumstance:

• 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.

 

 

1. To Apply EB-1A, You Must Show that Your Immigration Will be of Benefit to the US

I am in my fourth year of PhD and I am preparing documents to apply for EB-1A. The lawyer asks for an employment letter which would state that after my graduation I would be hired. My school advisor already knew that I would not stay as a postgraduate student, and I wrote in my NIW I also indicated that I would find a job in an industrial field. So if there is no offer letter from my advisor, my lawyer said I had two other options: one is get an offer letter from others; the other is actively applying for jobs. My questions are: 1. Is it too late to find a job now? 2. The document says that the advisor’s offer letter is the best of these three. Therefore, is it for a doctoral degree graduate to apply for EB-1A with a postdoctoral offer? 3. If #2 is true, is there any bad influence if I don’t go for postdoctoral degree?

Mr. Lee answers,
You can generally start a green card EB-1A case whenever you choose and unless you have some unusual time pressures, it is not too late to find a job that can give you an employment letter. On the type of job and your lawyer’s document saying that the school’s job letter is the best among the three options, it may well be that your education and extraordinary knowledge are best used in a research capacity and that academia may offer the best opportunity. Although the EB-1A category criteria are different from those of a national interest (NIW) case, you must still be able to show that your immigration will be of benefit to the country. If you are able to secure a position in industry in which you will be able to utilize your knowledge and skills in an advanced manner, e.g. scientist as opposed to technician or analyst, such might also be an acceptable offer of employment.

2. Don’t Let I-485 Fall into a Black Hole Because of EB-1

I applied for EB-1, but received RFE for I-140.  I have filed an EB-2 application and I-140 has been approved.  Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE?  I am worried about my application going into a black hole.

Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.

3. EAD Processing Time is About 3.5 to 6 Months

I found a job in a lottery-free school, and the school promised to help me apply for H-1B, and I can apply for a green card after three years. My wife needs to apply for H-4. How long does it take for H-4 to apply for work authorization (EAD)?

Mr. Lee answers,
Under current law, a H-4 spouse is only eligible for an EAD under one of two situations – the H-1B principal has an approved I-140 petition or the H-1B is applying for an extension past the normally allowable six year time limit of H-1B status based on having filed either an employment visa petition (I-140) or labor certification application & 365 days have elapsed. I imagine that the first situation will likely occur before the latter. As your school will only apply for the green card after three years, the timing after that will depend upon how long a labor certification will take, or if the case is being done without labor certification, how long it will take for you to obtain the I-140 approval after three years. Following that, your spouse could then apply for the EAD and the further timing would depend upon the processing time of the relevant USCIS service center. Currently, such EADs are being processed anywhere from 3.5 – 6 months (current published processing times) dependent upon which service center is involved.

4. Priority Date Could not be Transferred to Spouse

My current situation is that my EB-1B has just been approved, but because EB-1 is not current, I have to wait for the priority to become current. The conservatively estimated time is about 1 to 2 years before I-485 can be submitted.  I did not apply for EB-2. My teammate has an EB-2 with a 2019 PD. I would like to know if I can this link my EB-1 to his EB-2?

Mr. Lee answers,
There are certain situations in which priority dates are transferable from one case to another, but they invariably involve the same person. For example, if you had a 2019 EB-2 approval, you could have used it in support of your EB-1 I-140 petition to request the earlier priority date. However, even if you were married and your spouse had a 2019 priority date, that could not be transferred to your petition. Each petition must go its own way.

5. In Case of any Difficulty, Please Contact the Immigration Contact Center First

I hold a green card and have met the requirements for naturalization. After I asked for a rescheduled appointment for my first naturalization interview due to physical discomfort, I suddenly received a letter from the US Immigration Service a month ago, informing me that I did not show up for the interview and that I had not contacted the US Immigration Service. After that, I made several phone calls and online contacts with the USCIS, and they all said that the application for the repeated appointment was approved. Last week, I suddenly received a notice from the field office, saying that I did not go to the interview for no reason, so the naturalization application has been administratively closed. I’ve written to the local field office to explain the situation, but am still concerned. Excuse me, can I ask the local MP for help in this situation?

Mr. Lee answers,
Your example is the reason why we always encourage our clients to make it to USCIS appointments if at all possible. USCIS will occasionally do what it did in your situation. Yours is not a rare situation. That being said, probably the best way to communicate with USCIS is to bring up the matter with its Contact Center which can be reached telephonically at 1-800-375-5283 from 8 AM-8PM EST. Writing to the local field office is no longer the preferred way of reaching out to the agency. If you wish, you can reach out to your local member of Congress for assistance, but you may also wish to try the Contact Center first.

1. A question on prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined. 

A reader asks,
My prevailing salary level (PWD) is approved, but the company’s pay center has changed location. After waiting for 6 months, I finally got the PWD. I received an email from a lawyer today, saying that I can start advertising, and asked me to send him some information, including the latest pay slip. I sent it. I thought everything was just waiting, but after a few hours, a lawyer said that the entity name of my pay slip had changed, and I had to wait another 8 months for a new file. what do I do? I explained the reason, saying that it is not because the entity name has changed, but because the location of the pay center has changed, from the original IL to CA. This requires refile, but how do I know? I never paid attention to this, because the company has never changed or reorganized. However, I went to see the pay slip today, and it did change many times in the middle, as if it changed every few months. HR said this is normal. I would like to ask, I am now asking HR to change my pay center back to IL, and it has been kept in IL. Is it possible to continue to use the current PWD?I have been working remotely for more than a year since I was hired, because when I applied for PWD before, I asked whether to apply according to my home location, and the lawyer said no, I need to do it according to the company headquarters office. The entity name company at that time happened to belong to IL, so they used IL. I didn’t know the pay slip keeps changing. I asked HR, and he said that the Pay center is determined according to the company code of each month or each period. I’m remote, it doesn’t affect me. I still file taxes according to my current state. HR said that I can apply for my manager to help me fix it on the pay center of IL. The lawyer didn’t respond either. what to do?

Mr. Lee answers,
A prevailing wage determination (PWD) for a roving employee or one whose final work location has not been determined should generally be the prevailing wage of the headquarters metropolitan statistical area. It is not clear from your fact situation whether the name on the prevailing wage form is that of the headquarters office in Illinois or a separate entity in Illinois. If a separate entity like a professional employer organization (PEO), it may well be that the prevailing wage will have to be redone unless everyone agrees that that will be the sponsoring entity and all documents come from there. In that case, a change back to being paid by the pay center in Illinois might make the situation easier for USCIS to understand in the I-140 phase. However, if the PWD was done for that location, and under the company name and not the pay center, I fail to see what is wrong with it. Recruitment would then be conducted in the headquarters location. The payslip issue would looked at by USCIS in the next phase of your case, the I-140 petition, assuming that the labor certification is approved. If the company is using its various offices in different locations to issue payslips and W-2s, the company would have to provide an explanation concerning the relationship and how the company operates with reference to payment of its employees. If the company uses a PEO, a company explanation along with proof of its relationship with the PEO would be warranted. In that case, the company should also be the petitioning organization on the I-140 and not the company’s pay center nor PEO. Issues of who is the actual employer with rights to hire, pay, fire, supervise, or otherwise control your work may come into play along with requests by USCIS to document these points if the petitioner is one of the company branches or PEO. As this is a complicated issue, and you may not know all the facts, your company should work with its attorney to take the best course of action keeping you informed of its decisions.

2. J-2 dependent who has EAD approved is generally allowed to work in the U.S.

A reader asks,
I am in China and want to apply for J-1 or H-1B to work in the United States. My spouse will go with me. How can the spouse legally work? What are the options? Is there any way to exempt?

Mr. Lee answers,
The J-2 dependent of a J-1 visa holder is generally allowed to work in the United States upon application as long as the income is not being used to support the J-1 holder. The dependent would file an I-765 application for employment authorization at any time after arrival with USCIS paying the filing fee of $410 along with submitting requisite documentation (not onerous). The legend to place on the application for the category of work is C-5. H-4 dependents of H-1B visa holders find it more difficult to apply for work authorization as it can only be done when the H-1B holder is being sponsored for permanent immigration by an organization and has the I-140 petition approved (the step after obtaining a labor certification) or the H-1B holder has been approved for an extension of time past the normal allowable six year period of H-1B status as 365 days have elapsed since the filing of a labor certification application or I-140 petition. Please be aware (if you are not already) that J-1 visas for China nationals come almost exclusively with a two-year home residence requirement before the applicant is eligible for H-1B or L-1 (intracompany transferee) or permanent residence approval.

3. H-1B holders who already have H-1B visas in the passports would continue to travel in and out using the visas.

A reader asks,
I am working in the US and I am going back to China to visit my relatives. I heard that combo cards are issued separately now, so do I not have to worry about H-1B’s invalidation if I return to my home country?

Mr. Lee answers,
Combo cards combining I-131 Application for Travel Document advance parole and I-765 Application for Employment Authorization benefits in one card were discontinued by USCIS in April 2022. At this time, employment authorization is usually given faster than advance parole. Advance parole allows individuals free travel in and out of the US during the time that an I-485 adjustment of status application is pending. Without advance parole, most applicants are precluded from traveling. H-1B’s, however, are still allowed to travel during the adjustment of status phase without advance parole. Those who already have H-1B visas in the passports would continue to travel in and out using the visas. A point of decision arises for those without visas who wish to travel outside. Some fear that they may be denied H-1B visas while overseas, and so those would usually apply for advance parole and wait for it to be issued before safely leaving and returning to the US. A difficulty with advance parole at this time is that USCIS does not give these applications priority, and so advance paroles are usually approved between 6-12 months from the date of application. We note that the speed of adjudication is inconsistent as we recently had one approved within eight days of application while another pended 18 months. To discourage individuals from asking about their cases, USCIS has posted processing times of 14 months for the California Service Center, 11.5 for the National Benefits Center, 13.54 Nebraska, 16.54 Texas, and 7 for the Vermont Center.

1. RFE is Request for Further Evidence and NOID is Notice of Intent to Deny

I filed an NIW application and kept checking the status, but nothing changed. Yesterday, the lawyer told me and I was very nervous and sad when I received the RFE. I have never seen an RFE before, so I would like to ask some questions: firstly, how to judge whether the received RFE is not a NOID, only the request for evidence is written at the end of the attached table? On March 1, the date on which the lawyer received the RFE was February 23, but the status I checked online remained unchanged and it was still case received. Won’t the status of the RFE be updated online? The RFE was very long and questioned all three prongs. I provided information for each point, but it was considered insufficient proof. Does this mean that the probability of passing is not high?

Some people say that if it is RFE instead of NOID, that means that there is an intention to pass it, but what is the situation like this when every point is questioned? Finally, I would like to ask prong3-it is beneficial not to use the labor certificate. How should I argue? If the first two prongs can be proved, then this is no problem? The first two prongs felt that they didn’t buy my recommendation letters very much, saying that they couldn’t prove the connection with other entities. I don’t have a patent for my articles, and the recommendation letters are mainly from the bosses of the company. Outsiders will not know my specific work. Excuse me, if you want to issue a relatively independent recommendation letter, you may find a company customer or a professor in a related industry. What are they going to write? Is it okay to write from a resume?

Mr. Lee answers,
For the benefit of the readers, a national interest waiver (NIW) requires that the petitioner show that there is substantial merit and national importance to the proposed endeavor; that the petitioner is well placed to advance the endeavor; and that it would be beneficial to the United States to waive the labor certification requirement. To your specific situation, USCIS labels RFE’s (Request for Further Evidence) and NOID’s (Notice of Intent to Deny). If your attorney informed you that he or she received an RFE, you can well believe it as he or she is looking at it. (The attorney should email or send you a copy). Generally speaking, the online status system should register the RFE, but the system is inconsistent and sometimes does not as a system is only as good as the persons inputting information into the system. It is always better to have at least one of the prongs decided in your favor when you receive an RFE, but being questioned on all three does not necessarily mean that you will be denied if there is a strong response. The question of the third prong – whether it would be beneficial to the country to waive the labor certification requirement – would likely be resolved in your favor if you are adjudged favorably on the first two points. Entrepreneurs and those who are extremely good in their fields with deep knowledge and experience are not readily amenable to the labor certification process, which demands that petitioning organizations only ask for minimally qualified people. Besides the impracticality of a labor certification application, USCIS looks to see the benefit to the US from the petitioner’s contributions even if other US workers are also available, and whether the national interest in the person’s contribution is sufficiently urgent. In looking at recommendation letters, USCIS is looking for objective observers who can talk about you, your endeavor, and how it may benefit the country. Letters from people who know you like colleagues, your managers, and company customers may not be seen as objective. A professor in a related industry who knows of your work may be more persuasive. USCIS is also looking for original letters, not letters written from a resume. Letters that look like they are written by the same person are not well accepted. The best letters are thoughtful ones written by individuals talking extensively about your endeavor, how well-positioned you are to advance the endeavor, and if possible, explain how granting the waiver may outweigh the benefits of making you go through the labor certification requirements.

2. An applicant for a B1/B2 visa must disclose past immigrant visa information

I’m in China and I’m going to America. I would like to know, if I submit a US green card application, can I still apply for a B1/2 visa? For example, if I apply for a business trip, tourism, or meeting in the United States, what proof do I need to provide?

Mr. Lee answers,
An applicant for a B1/B2 visa is required to disclose in the DS-160 nonimmigrant visa application form whether he or she has applied for an immigrant visa or had an immigrant visa petition filed on his or her behalf. Upon such disclosure, the decision of whether to issue the visa will be in the discretion of the American consular officer. You should prepare such materials as proof of the purpose of your trip, ties and bonds with the home country such as ownership of real property, other assets, bank accounts, employment or schooling, etc. I note that it has been our experience that many consular officers take less notice of immigrant visa petitions where there is still a considerable time to elapse before the priority date becomes current.

Check the Processing Times of Your Case Online

A reader asks:

I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

Article: CSPA Vis-À-Vis USCIS Adjustment Chart

A huge development in The Child Status Protection Act (CSPA) is USCIS’s re-interpretation of the date on which a child’s priority date is reached for freezing age before turning 21 and he/she then no longer being able to immigrate as a child. USCIS announced a policy on February 14, 2023 that it would henceforth use the “dates for filing” chart of the monthly visa bulletin to finally fix the child’s age. Prior policy had been to use the “final action date” to determine whether the child was under the age of 21. In the past, a child would be able to file an I-485 under “dates for filing”, but if he/she turned 21 before the “final action date” opened, the case would be denied. Although there is no adjustment of status in cases being consular processed, the same rule should now apply for cases being interviewed overseas as the Attorney General (including DHS and its USCIS component) and not the Secretary of State determines the law in the field of immigration.

In determining when an age is “frozen”, the applicant must read two charts, the Department of State visa bulletin’s “dates for filing” one, and the USCIS monthly adjustment chart designating which of the Department’s two charts will be used for accepting adjustment of status applications. The USCIS Policy Manual instructs that, “The date USCIS considers a visa available for accepting and processing an adjustment of status application according to the USCIS website and the Visa Bulletin is also the date USCIS considers a visa available for CSPA purposes if the petition is already approved.… Applicants cannot rely on the DOS Visa Bulletin alone because the Visa Bulletin merely publishes both charts; it does not state which chart can be used to determine when to file an adjustment of status application. The DOS Visa Bulletin contains a clear warning to applicants to consult with the USCIS website for guidance on whether to use the Dates for Filing chart or Final Action Dates chart.”

This policy change applies to pending applications, with the guidance also saying that noncitizens can file a motion to reopen a previously denied adjustment of status application with USCIS by using form I-290B; that noncitizens must generally file motions within 30 days of the decision; and for a motion filed more than 30 days, USCIS may in its discretion excuse the untimely filing if the noncitizen demonstrates that the delay was reasonable and was beyond the noncitizen’s control.

On the USCIS CSPA page, there seems to be more room for motions to reopen where an applicant is not yet 21 using the new guidance as it says, “If we previously denied your adjustment of status application, but you believe your CSPA age calculation is under 21 under this policy guidance, you may file a motion to reopen….”

Q&As:
1. Different immigration offices have different processing times

A reader asks:
I filed my I-130 & I-485 in September 2021, as well as I-765 and medical examination I-693, and then I got my fingerprints on October 15.  After that, I never got any news.  In July 2020, I called the agent a few days before receiving the EAD and asked how my cases status were. They told me that my interview waived in June 2022 and the case transferred to local office in October 2022, but there was no notice.  It has been more than 500 days since the mail was sent.  My I-485 status is stall actively reviewed and my I-130 status is still received.  What is going on in this situation?

Mr. Lee answers,
Because of the pandemic, lack of funding, and loss of personnel over the past few years, USCIS backlogs have unfortunately ballooned. Although your agent informed you that your interview was waived in June 2022, cases are generally transferred to local offices for purposes of interviewing. “Active review” by USCIS many times means nothing as we have received that information on many cases that have just been receipted by the agency. You can check the processing times of your local field office to see what is its published processing time. For example, in New York currently, the Brooklyn office has a projected time of 40.5 months, Queens office 24.5 months, Manhattan 17 months, and Long Island 27 ½ months. If your case is over the processing time, you should be able to check on its status. To do so, the recommended methods are to call the USCIS Contact Center at 1-800-375-5283 or to launch an inquiry by e-request through egov.uscis.gov/e-request.

2. A I-140 visa petition is a preliminary petition and is not an application for immigration itself

A reader asks:
I applied for EB-1, but received RFE for I-140.  I have filed an EB-2 application and I-140 has been approved.  Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE?  I am worried about my application going into a black hole.

Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.

3. One premium processing fee for one application

A reader asks:
I need to apply for I-140 immediately, but I am hesitating whether to expedite the process? I also want to apply for the extension of h1/h4. Some colleagues suggests that I try to submit 140+h1/h4 extension+h4EAD together. Of course I want to save money, and I want to save a premium process fee, otherwise I will have to submit two premium process fee for the two requests. Is this possible?

Mr. Lee answers,
Unfortunately, there is no bundling of applications for purposes of submitting only one premium processing fee. At this time, USCIS will expedite for $2500 an I-140 petition. It will also expedite H-1B petition for the same amount. The $2500 that you would be paying for the H-1B expedite does not include expediting the H-4 or H-4 EAD although those applications have sometimes benefited from the H-1B premium processing to be adjudicated in shorter time. I note that USCIS decoupled H-1B’s from H-4s, but as a result of litigation, is coupling them again. That means that petition and applications have a higher likelihood of being adjudicated together in the future.

 

Article: Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap.

Q&As
1. Excusable overstay if married to a U.S. citizen

A reader asks:
The lawyer and I did not receive an RFE. The online account was not displayed. I called the customer service and said that I couldn’t see that I had an RFE in the system. In the end, my I-485 was denied because I didn’t reply to the RFE. Now the EAD card has also been revoke, and I need to leave the country within 180 days. I have already file motion to reopen, hoping to approve. I thought about several backup plans: 1. Marry a citizen, file I-130. Do I have to leave the country or can I stay in the country as long as I file 130? 2. Find a non-profit job within 180 days, because I can apply for H-1B immediately without lottery. In this way, I do not need to leave the country and apply for green card marriage at the same time. Is there any other way?

Mr. Lee Answers,
Sorry to hear that you were denied for abandonment on an RFE for which your attorney did not reply since neither the lawyer nor you received the RFE. This is unfortunately a more than occasional problem of USCIS that it should work to fix. On your question of whether you would have to leave the country if you marry a US citizen, the answer is “no” since an overstay is forgiven where you are the beneficiary of an approved immediate relative petition and file for adjustment of status. As to whether you can remain here if you find a nonprofit job within 180 days (I assume that you are thinking in terms of a non-cap H-1B and the time for unlawful presence), you would still have to leave the US and return under a H-1B visa status to be legally allowed to take up the employment.

2. Renewal Sponsorship by the Same Employer  Approved I-140 Can be Reused

A reader asks:
I have just been laid off recently. I am currently on Stem OPT. Last year I had an approved I-140, and PD was at the end of 2021. I would like to ask, besides trying to find a new company to go thru the cap H-1B registration process, what else is there for me? way? Is it difficult to use the I-140 again if I return to my country?

Mr. Lee answers,
Besides H-1B transfer, you can attempt to change your status to F-1 student to remain here or if you believe you have extraordinary qualifications, an employer or agent can apply for you under the O-1 category. Those come readily to mind. If you are from a country that has a treaty of navigation and commerce with the US, eg. Taiwan or Japan, you may qualify for E-1 or E-2 treaty trader or treaty investor statuses. Other options are possibly available which would be dependent upon your particular situation. On your question of whether it would be difficult to use the I-140 again if you returned to your country, you might be able to use it if the same employer decides to continue the sponsorship. If not, and the employer has not timely revoked the petition within six months of approval, you should be able to use the priority date for purposes of another employment-based petition.

3. Priority Date is Not Shareable

A reader asks:
I submitted NIW in 2022, and priority date(PD) is in November. I am preparing to file an EB-1A application in January 2023. Are EB-1A and NIW Shared PD? If EB-1A is adjudicated before NIW, is PD still valid after being denied? Do I have to submit EB-1A at this time, or I shall wait for the NIW’s case to be approved before submitting it? I think there is a high probability that my NIW will be approved. Even if EB-1A is denial, can PD be locked until November 2022?

Mr. Lee answers,
There is no “sharing” of priority dates until there is an approved petition. At that point, a priority date can generally be used by the beneficiary in a second employment based case. We have seen this many times in Chinese and Indian cases in which the EB-3 approved petition’s priority date is shared with a later filed EB-2 petition since the EB-2 dates of visa availability lapped those of EB-3 in the past few years. If you wish to use the November 2022 NIW priority date for purposes of an EB-1 petition, you should wait until the NIW is approved before submitting the EB-1 petition and requesting the NIW priority date.

4. PERM Denied  May Apply for Reconsideration

A reader asks:
The PERM audit was denied after 3 months because the address of the Certifying Officer was the old address. What is the solution for this situation? Is it useful to apply for reconsideration?

Mr. Lee answers,
The Department of Labor is strict as to its governing of notices of filing (NOF) for the postings that must be placed upon employment premises. The Department of Labor changed the address for notification to the Certifying Officer of any complaints. The new address of

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue NW, Room N-5311
Washington, DC 20210

became effective on August 25, 2021. Unless there were truly extenuating circumstances, it is difficult to believe that the Department of Labor would bend on a request for reconsideration.

 

1. Dissatisfied with the anti-epidemic policies in China is not consistent with political asylum

A reader asks:
I am a medical worker in China. During the epidemic, I expressed my dissatisfaction with certain anti-epidemic policies. After posting them in a WeChat group, I was criticized by law enforcement agencies. The hospital leader also admonished me, told me not to talk, just follow through the rules. Now, I come to the United States and want to apply for political asylum. Are these accusations and reprimands considered political persecution? Can my asylum case be approved?

Mr. Lee answers,
I suspect that a claim based upon dissatisfaction with anti-epidemic policies as you have expressed in your fact situation might have a problem being approved under US asylum law. The law is based upon past persecution or well-founded fear of future persecution. For a claim of past persecution, the events that you have related – criticism by law enforcement agencies and being admonished by the hospital leader – would likely not rise to the level of persecution necessary for an asylum claim to be approved. For a claim of a well-founded fear of persecution, you would have to demonstrate that the authorities are still interested in you and that you would face persecution upon return to China. You will also have to convince US immigration authorities or immigration court that your opposition to government policy was (past persecution) or is (future persecution) on account of race, religion, membership in a social group, political opinion, or nationality.

2. Employers can sponsor PERMs for remote positions

A reader asks:
Is there a fully remote for PERM and I-140? I recently got an offer. The company is in another state. I live in California. The company does not have an office in California, but it allows me to work from home. If I work from home fully remote, can I apply for I-140 PERM? Are there any additional risks? what should I be aware of?

Mr. Lee answers,
An employer can decide to sponsor a PERM labor certification application for a position that will be wholly remote, but would have to comply with additional requirements of the Department of Labor including an expansion of advertising for US workers on a nationwide basis as the position could be fulfilled by a worker in any location in the country. The company would generally use its headquarter location for purposes of the application, and obtain a prevailing wage determination in that metropolitan area.

3. It is difficult to obtain NIW, if papers are rarely cited

A reader asks:
I am a doctor of liberal arts and have been graduated for four years. I joined a consulting company after graduation, and now I am doing research-related work in a big factory, with very few papers and only 2 citations. I have several conference papers, and I want to try to apply for NIW, but several law firms have rejected them. I don’t know how to prove the nature of the work and the national interest related to the impact. Should I give up?

Mr. Lee answers:
An NIW case is generally very fact specific, and knowledgeable law firms will usually go over your situation and accomplishments before rendering an opinion that your case would not be approved. I note that USCIS is generally looking for pioneer type research in peer-reviewed journals which has been well cited. Having a few papers with only two citations is probably not very persuasive. If possible, a better approach might be contacting a US company or institution in your field and having it sponsor you through a PERM labor certification for permanent residence.

4. Immigrant Visa Denied But I-140 is Still Valid

A reader asks:
I am in China, and I want to apply for I-140 or EB1-A, but I am still a CCP party member (without a job), and now I want to know the following situation: 1. If I quit the party for less than two years when I went to the Guangzhou embassy or consulate for an interview , how likely is it to be rejected after two years or less than five years? 2. If rejected, will the approved I-140 and the accompanying priority date (PD) be retained? 3. Can I use this PD to submit another interview application again (for example, five years after quitting the CCP)?

Dear reader,
As you are aware, meaningful membership in the Communist Party of China imposes a five year bar on entry to the US for purposes of permanent immigration (not nonimmigrant visas) after leaving the Party. Appearing for an interview at the consulate in Guangzhou after leaving the party for two years will result in a denial if the association was meaningful. Denial of the immigrant visa does not automatically invalidate the approved I-140 petition. However, inability to rebut the ground of inadmissibility within a year may serve to terminate the entire case. If a case has been terminated by the Department of State, the priority date is no longer available for use.

5. Temporarily return to China to work remotely will not Hinder I-485

A reader asks:
I am currently in the OPT (non-STEM) period. I submitted the EB-1 application in January of last year, and submitted the I-485 in April last year. I am waiting for the interview. The interview time is unknown. My interview was ready to be scheduled in late September last year, and I have already obtained the EAD and AP of AOS. Our company has an office in China, and some colleagues went to work remotely in their home country for a few weeks. My boss also said that it was OK, and not to worry about layoffs. It seems that the interview will not be scheduled for a while. If I receive an interview notice within one month of returning to China, I should have time to return to the United States. I haven’t been back to China for almost 3 years, and I miss my family and friends very much. If I return to China to work remotely for a month and then return to the United States, will there be any problems?

Dear reader,
As you already have an advance parole and filed the I-485 application last year, I do not see a problem with your going home to work remotely for the company for one month before returning to the States. The time that you are planning to stay in China, one month, is conservative, and the purpose of working remotely for the company while overseas provides a good reason in the unlikely event that you are questioned about your purpose in having returned to China for the trip.

6. Is DS-2019 Important for My I-485 Application?

A reader asks:
I will submit I-485 soon, but I could not find the DS-2019 I had ten years ago. Ten years ago, I entered the U.S. as a J-1. After staying in the United States for 5 months, I returned to China for two years, so I should not need a J-1 waiver. More than 2 years later, I entered the U.S. again with F-1 status. I am currently F-1 STEM-OPT. Now I am following the main applicant to file my I-485, but I could not find the DS2019 form. I contacted the school I attended before, but no one was at work. Will there be a critical issue if I do not attach the DS-2019 with my I-485 form? How did others solve the problem?

Mr. Lee answers,
Although it would be better to have the DS-2019 exchange visitor form as part of the I-485 application, it should be adjudged less critical where you are able to prove that you returned to the home country for two years following your J-1 stay. (For many countries, coming to the US usually imposes a two-year home residence requirement before the individual can apply for permanent residence, H or L visas). I assume that you can present the passport containing the J visa and proof of your U.S entry and exit date along with proof that you served out the two-year home residency requirement in your home country.

1. Change of Status from H-4 to F-1 Must has Spouse’s H-1 Documents 

I’ve H-4 visa which expires in march 3 2023 and I want to change it to F-1 visa, can it be possible without the help of my husband documents? I want to study independently.

Mr. Lee answers,
Without the help of your husband’s documents, it is difficult to see how USCIS could approve a change of status application from H-4 to F-1. For a change of status in the US, USCIS must see that both you and your husband are maintaining legal nonimmigrant status – especially focused on your husband since he is the principal of the H-1B/H-4 statuses. You would need a copy of his H-1B approval and proof of recent pay from the H-1B employer to show that he is maintaining his status.

2. In Some Cases, Premium Processing Filing Fee Can be Waived

I am going to apply for employment-based immigration case. Someone suggests that I spend an extra $2,500 to expedite it, but I am hesitating. I saw on the USCIS official website, it takes 10 months to process, but someone said that he got approved in less than a month. Was it a special case or has it been speed up recently? Do I have to spend an extra $2,500 to expedite it?

Mr. Lee answers,

Employment based cases involving I-140 petitions generally take much time for USCIS to reach and adjudicate. For example, in checking the published times of the two immigration service centers handling these type of cases, Nebraska has a 20 month backlog on EB-1A extraordinary alien petitions, 10 months on EB-2 advanced degree petitions, and 17.5 on EB-3 professional/skilled worker petitions. Texas has a similar backlog of 22 months for EB-1A, 10 months for EB-2, and 20.5 months for EB-3.

The agency will expedite without requesting a fee in the following circumstances as per its policy manual:

• 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;^[3]
• 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;
• U.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.

Unless the petition that you heard of being approved in less than a month without premium processing fit within one of the above categories, it was most likely an outlier.

3. Do not Rely on USCIS’ Unofficial Notices 

I filed an EB-1A application before, received RFE, and then I asked my lawyer to withdraw it. I checked the case status online today, but the application was approved. I asked my lawyer, the lawyer replied that they had encountered the same situation before, and the USCIS would revoke the approval later. He didn’t promise that would be the case this time, though. I think immigration made a mistake. My lawyer said he would check with USCIS.  He got back to me and said whether the case was withdrawn or not, depended on the official notice. He said the USCIS would get back to him within 30 days. What is this going?

Mr. Lee answers,
I am of the same opinion as your lawyer that USCIS will later revoke the petition approval. In your fact situation, you clearly state that there was an RFE and that the law firm withdrew it. USCIS has a long history of denying as abandoned those cases in which it issues RFE’s and there is no response. In your case, there was a definite response – withdrawal by your attorney. In such case, USCIS will send a withdrawal confirmation. Please note that unofficial messages by USCIS on its online system cannot be relied upon 100% as we have seen many occasions on which the unofficial response does not match the ultimate adjudication that comes from the agency.

4. Filing I-485 without J Supplementary Form is More Likely to be Rejected

I planed to start working as a teacher in January 2023, and in December my school filed my EB-1B’s I-140 application . I originally planned to file my I-485 after joining the school in January, but suddenly I found out that EB-1’s priority date has become current in January. I thought about submitting I-485 in December, but the school said that I-485j form could not be issued without employment. I would like to ask, if I submit I-485 without I-485j form, will I be rejected immediately? Or can it be added later when the RFE is issued?

Mr. Lee answers,
To give some background, EB-1B for outstanding scholars and researchers backlogged to June 1, 2022, for natives of India and China on January 1, 2023, on the “dates for filing” chart of the Department of State and is holding to the same date in February. To file an I-485 application in January or February, you will either have to be a non-native of these two countries or have a priority date earlier than June 1, 2022. To your specific question of whether you could file in December 2022 without Form I-485J and not be rejected, the answer is uncertain. I recall that when the I-485J supplement was first added (a form required to confirm employment for most employment-based classes where the I-485 was not concurrently filed with the I-140 petition), USCIS was forgiving when the J form was not included with the filing. Whether the agency is so forgiving at this time is something that we do not know at this time. I note that if you tried, it may have been better to include a job offer letter from the institution. I also note that the J form is now being requested on the “Checklist for Required Initial Evidence for Employment Based Form I-485 Applicants”, which makes it easier for USCIS to reject than when it gave no previous written warning in checklist or instructions that the supplementary form was to be included.

5. STEM Graduates Can Stay in the United States for 3 Years with OPT

I want to stay in the US for five years. Now, I am going to apply for computer major. Can I stay in the United States for five years after studying this major?

Mr. Lee answers,
There are many individuals who manage to stay in the United States for five years after studying for a degree in computer science. That is considered a STEM (Science Technology Engineering and Math) major which is highly prized and allows graduates to obtain another two years of practical training on top of the regular one year of postgraduate optional practical training. During the three years, many individuals are able to switch over to H-1B specialized occupation visas in which individuals can remain on six years. Other options may also be available depending upon your particular situation. For those not born in India or China, there is also the possibility of employer-sponsored green cards within 1-2 years if everything goes well.