Category: Q&A

1. To apply for EB-1A, 3 of the 10 criteria must be met

A reader asks:
I have a friend in China who has talked to me about immigration many times. He is 42 years old and is an associate professor of computer science at a 211 university in China (the school should be ranked in the top 50 in the country). He is a cadre in the system, which should be a lifetime system. His annual after-tax income is about 150,000 RMB, plus other five social insurances and one housing fund, about 230,000 RMB. He wants to apply for EB-1A to come to the United States to work as a programmer or other computer-related work. As long as his annual income covers family expenses and he can save 30,000 US dollars, he will be satisfied. He is not a member of the Communist Party. May I ask how long it will take for him to apply for first priority?

Alan Lee Esq. answers,
In your fact situation, your friend is an associate professor of computer science who has good income, wants to apply for EB-1A to come to the US to work as a programmer or other computer related work, and he will be satisfied if his annual income covers family expenses and he can save $30,000 USD. He would not appear to fit within the criteria of EB1A which requires that an applicant have qualifications in 3 of 10 evidence categories to be considered, and if qualifying on 3, is then considered in a merits determination in which USCIS attempts to determine whether he or she has demonstrated national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that he or she is one of that small percentage who has risen to the very top of the field of endeavor. USCIS considers among other criteria whether the applicant has a major award such as the Nobel Prize, or if not three other criteria such as lesser nationally or internationally recognized prizes; membership in associations which require outstanding achievements of members, published material about him or her in professional or major trade publications or other major media; participation as a judge of the work of others in the field; proof of original scientific contributions of major significance in the field; and of the applicant’s authorship of scholarly articles in the field in professional or major trade publications or other major media. Your friend may decide to explore other parts of the US immigration scheme, including temporary worker under H-1B specialized occupation visa or labor certification green card – both of which require a US sponsoring employer.

1. Fing a premium processing for an EB-1 case where you are not sure about the merits of your EB-1 case is not advised  

A reader asks:
Considering that Trump’s coming to power is a high probability event, I am a little anxious about my identity issue and am hesitating whether to expedite the EB-1B. The point of hesitation is that my EB-1B case is extremely weak, and I heard that expediting will increase the possibility of rejection. Before, the NIW was approved by TSC. When applying for EB-1B, I changed jobs and moved to NSC territory. I consulted an outside lawyer, who said that the EB-1B case has a chance in TSC, but not in NSC. But since the company lawyer agreed to do it, I must give it a try. I submitted it in early May this year, but it was not expedited when I submitted it, and I did not argue. In early June, the case status was updated from received to being actively reviewed. According to the timeline of about half a year, I-140 will not receive a reply from USCIS following opinions: 1. How long is the current TSC EB-1B case timeline? Is it still half a year? 2. In my case, should the EB-1B case be expedited?

Arthur Lee, Esq. answers,
Per the USCIS website, Texas Service Center is adjudicating 80% of EB-1B cases within 10 months. It may be a good sign in terms of speed of your case that your case status changed to “active review” in June. My suggestion is to stay patient regarding your EB-1B case. I would advise against premium processing for an EB-1 case where you are not sure about the merits of your case. Premium processing service, for whatever reason in recent years, has been known to invite tougher scrutiny in many types of immigration cases—EB-1 included. Anecdotally, many immigration lawyers in recent years have encountered difficult RFEs and NOIDs when filing premium processing for EB-1 cases—even strong cases. Also, I note that your lawyer’s belief that your case has a shot at TSC but not at NSC is very speculative. This may or may not be true, and it is difficult to determine at any given moment which service center is more likely to have tougher adjudicating officers and which ones have more lenient officers. Finally, a Trump presidency would be generally bad for intending immigrants to the US. But EB-1 was not a focus of the previous Trump administration, and will not likely be a focus of scrutiny in an upcoming Trump term. The risks toward your EB-1B petition of filing premium processing, in my belief, far outweigh the risks of a Trump presidency.

2. In filing the PERM application, you will not need to submit your resume for Department of Labor review

A reader asks:
Recently, the company wants to apply for perm, and I need to provide a resume. I have 2 questions: 1. I worked in China for 6 years before and came to the US again. Is it necessary to provide domestic experience? 2. Will the domestic experience be checked? Because the company I used to work for went bankrupt, the company should be deregistered.

Arthur Lee, Esq. answers,
In filing the PERM application, you will not need to submit your resume for Department of Labor review. The resume is likely for the company or company lawyer to help formulate case strategy. There is no need to provide your 6 years working experience in your PERM ETA 9089 application unless that 6 years experience is relevant to your qualifications for your sponsoring company’s position. You only need to disclose your current employment, and other employment relevant to your qualifications for the PERM position. If your experience in China for 6 years was relevant, then you may want to list that experience on the PERM ETA 9089, and obtain an experience verification letter from your China employer. This letter can come from your former manager or human resources, or anybody else you worked with in a responsible position who can attest to your experience. If the company is deregistered and out of business, you can still verify this experience by having a former manager or colleague attest to your experience while explaining that the company is now out of business. You may supplement that letter with an affidavit of your own explaining that you had worked in that position with the China company, but could not get a verification on the company’s official stationery because they went out of business.

3. When the time for processing at the field office has passed, you may wish to speak to a USCIS contact center

A Reader asks:
I applied for EB-1A, and my I-485 has been under for nearly two years. I am anxious again this year, so I have to ask Emma. I don’t understand the reply, please help me interpret it. My I-485 has been transferred to the local FO for a year and a half, and it has been current and stuck in the fingerprint status.

Q: My priority date has arrived, why is it not approved?

Q: Even if your priority date has arrived, if there are not enough visas, your case will still be suspended according to regulations until a visa is available.

Q: So even if I am in the field office now, I don’t have an EB1A visa? Is this what you mean?

A: Your case will continue to be suspended until the officer provides you with a visa number.

Excuse me, why have you not had a visa for almost two years, and shouldn’t there be a lot of EB-1A quotas in the new fiscal year (these two years)? As I said recently, I found that Emma is indeed unreliable. A month later, I asked Emma where my case was. Emma said it was at NBC. I confirmed it again and she said it had always been there, and it had never changed. I thought I had finally been transferred back to NBC from FO. I confirmed it again. She said it had been at FO for a year and a half. Did it just get transferred back? Emma immediately changed her words. Sorry, I misread the document. It was still at FO. It had been a year and a half and it was still at FO.

Arthur Lee, Esq. answers,
for the month of September 2024, the final action date for the EB-1A category is current for most of the world except for natives of China and India whose I-485’s cannot be approved unless their priority dates are earlier than November 1, 2022 and February 1, 2022 respectively. I note that the EB-1A category has backlogged periodically with those two countries in the past, and so you may wish to check your priority date to see if it is now current if you are a native of one of these two. Assuming that the priority date is current, and assuming that the time for processing at the field office has passed, you may wish to speak to a USCIS contact center representative at 1-800-375-5283 to see whether you can obtain more accurate information on the progress of your case.

1. If your priority date is current, it is best to file your I-485 ASAP

A reader asks:
Because the company wants to save money or not occupy the H-1B quota, the company wants me to wait as long as possible to get the combo card. My situation is to wait for the scheduled update in September this year to submit I-485 and wait for the combo card. My H-1B expires at the end of September this year. I have two options. Option one is to suspend work until you get the combo card and then continue working. Option two is to apply for an H-1B extension in September. It is estimated that it will take more than half a year to get the combo card approved. It is estimated that the combo card will be activated again in march or April when the combo is released. If H-1B is denied, company checks will not be cashed. I also know that the best solution is to extend the H-1B immediately, but the company wants me to wait. If you think it’s best to apply for H-1B extension first, when is the deadline?

Arthur Lee Esq. answers:
Your deadline to file an H-1B extension would be the date of your H-1B expiration. For instance, if your H-1B status expires on September 30, 2024, your H-1B extension must be received by USCIS on or before September 30, 2024. So long as you properly file your H-1B extension, you will be authorized to work while your H-1B extension is pending adjudication for up to 240 days (typically an H-1B extension takes USCIS 2-4 months to adjudicate). If your company chooses not to file an H-1B extension on your behalf, your best alternative is to file your I-485 and I-765 concurrently as soon as possible. I am unclear as to why you are waiting until September to file your I-485 and I-765 application if your priority date is current. These applications are generally specific to you, and require limited employer participation. I do not understand why your employer would want you to wait as long as possible to receive an EAD too–that is an employment authorization card that would allow you to work for any employer (it is generally in your best interests to work for your sponsoring I-140 employer for a successful I-485 adjudication). As long as your priority date is current, it is best to file your I-485 and I-765 applications ASAP to have flexible work authorization as soon as possible, and to apply before visa retrogression potentially prevents you from filing your case. If your employer does not choose to extend your H-1B, you will not be authorized to work until your I-765 application is approved, but you will have authorization to remain in the US upon filing your I-485. In sum, it is in your best interests to take these actions as soon as possible: (1) file your I-485 as soon as your priority date becomes current, and I-765 if your employer seems unwilling to file your H-1B extension; (2) file your H-1B extension paperwork before your deadline in September.

2. Before filing I-485 you should maintain legal status

A reader asks:
The PD for my immigration application is early 2021. I later changed jobs and had my previous PERM and I-140, but it is now difficult to successfully advertise in the market. If the schedule is up but the PERM has not come down yet, will the PD expire after one year? I heard that I have to file my I-485 one year after PD current.

Arthur Lee Esq. answers:
You should not lose your priority date for adjustment of status purposes through an employment-based petition unless your I-140 is revoked for fraud or misrepresentation by your employer less than 180 days after I-140 approval. Unlike consular processing where you would typically need to file your green card application (DS-260) within one year of NVC notifying you of your priority date becoming current, there is no such regulation regarding I-485 filing. Therefore, you will not likely need to worry about your priority date becoming current for more than 1 year. You just need to ensure that your priority date can be legally retained, and that you will be able to maintain legal status in the US up until the time you file your I-485 application. Good luck to you on your PERM recruitment and adjudication, and the rest of your process. As soon as your PERM ETA 9089 is certified, you should be able to concurrently file a new I-140 / I-485 with a request to retain your old priority date–as long as the visa availability does not retrogress past your old priority date and you have been maintaining legal status.

3. If your I-485 case is past standard processing times, you may wish to contact USCIS

I applied for EB-1, PD is August 2022, but the current cutoff date is already November 2022. My current I-485 status is pending fingerprints taken for half a year. However, USCIS insists that my cut-off date has not been met. What should I do?

Arthur Lee, Esq. answers,
If your priority date has already been reached on “Chart A- Final Action Dates,” your case should be in line to be adjudicated by USCIS. However, you may wish to check standard processing times with respect to your adjudicating field office or service center. If your I-485 case is also past standard processing times, then you may wish to contact USCIS via eRequest or the Contact Center at 1-800-375-5283. If you had received communication from USCIS that your priority date is not yet available, you can reach out to them again and explain that their answer was wrong and ask for another update. USCIS officers do make mistakes in their responses to service requests, so the best thing to do is to continue to follow up until a decision is made, as long as your case is past standard processing times. Best of luck to you.

4. Going to school on a visitor visa bars a change of status application

My EB-1A was approved, Form B has arrived, and I will bring my child to the country in January with a B visa. We originally planned to submit the I-485 in three months, but now Form B is closed. The child has enrolled in a local public school. The school will have a holiday at the end of May and start school in August. My B visa expires at the end of June. Can the children continue to go to school smoothly here?

Arthur Lee, Esq. answers,
If your child is on a B visa, he or she is not allowed to go to school. Going to school on a visitor visa bars a change of status application if USCIS knows of it. Also note that schooling is not allowed until a change of status application is approved. Current published USCIS processing times indicate that 80% of F-1 change of status applications take approximately 4.5 months to reach for adjudication. You may wish to rethink your strategy.

5. It is best to wait until you have your H-1B approval before you leave the U.S. 

A reader asks:
My I-485 application is pending, H-1B will expire in less than a month, and the H-1B extension has been submitted but has not been approved yet. I have a Canadian visa. If I go to Canada to visit, can I get H-1B to return to the US? What are the risks?

Arthur Lee Esq. answers:
If you go to Canada, you will not likely be able to return to the US until your H-1B extension is approved. CBP cannot grant you a new time on an entry that you do not have approval for. It may allow you entry for the balance of time on your present H-1B if you attempt reentry during your present H-1B validity, but not the time afterwards which is not yet approved. In the latter scenario, it is likely that CBP will refuse you at the border and tell you to reattempt entry once you have your H-1B extension approved. Therefore, if you plan to return after H-1B expiration, it is best to wait until you have your H-1B approval before you go to Canada, unless you are truly willing to wait in Canada until your H-1B is approved before making the trip back over Stateside.

6. H-1B has not submitted I-140, the spouse cannot work with H-4.

H-4 has a NIW PD, can I work? But if I submitted an I-140 before marriage, the principal applicant does not have an H-1B, and the partner has an H-1B, but did not submit an I-140 together, in this case, can the principal applicant use the H-4 to work? If the I-140 is submitted together, will there be any difference?

Arthur Lee, Esq. answers,
From your question, my understanding is that you, the principal applicant, submitted an I-140 prior to getting married to your spouse; your spouse has H-1B status, but did not submit an I-140 petition. In this case, you would not likely be able to work on your H-4 status. An H-4 EAD is only conferred to the spouse of an H-1B principal who has an approved I-140, or who has been granted H-1B extension under sections 106(a) or (b) of the AC21. The first condition of your spouse having an approved I-140 is clearly not met. The second condition may be met if your spouse received an H-1B extension past the sixth year due to having a PERM labor certification approved for 365 days or more. If the second condition is met, then you may be able to file for an EAD through a properly filed I-765 application based upon your H-4 status. It does not make a big difference in the H-4 EAD context whether you listed your spouse as a family member in your I-140 petition. You will just need to show that you have an approved I-539 as the H-4 dependent, and give in appropriate documentation of the above described condition relating to your spouse and your marriage in your I-765 application.

1. If the consular officer or USCIS finds you improperly shared technical knowledge, it may be a ground for denial of your visa or green card. 

A reader asks:
Recently, a domestic headhunter and a friend who is starting a business contacted me and suggested that I apply for a national or provincial talent program. If approved, it will be 500,000 RMB per year, and a total of 1.5 million RMB for 3 years. I would like to ask, if applying for such a program will affect the future green card 485 change of status?

Arthur Lee, Esq. answers,
If you take up a position with a national/provincial talent program, your future green card application and your application for a visa at the consulate may face tougher scrutiny given the political climate between the US and China at this time. The US government has been cracking down on foreign talent recruitment programs, which it believes are a mechanism used by foreign countries such as China to bring outside knowledge and innovation back to their countries, including stealing trade secrets, breaking export control laws, or violating conflict-of-interest policies to do so. The FBI notes that while various countries use talent plans, China is the most prolific sponsor of these programs. Therefore, if you work at a talent program, your applications to come to the US on a visa, or adjust status to I-485 may be subject to further investigation into the questions of whether you have improperly exported technical knowledge and trade secrets to China. You will need to be prepared to answer questions about whether you have ever utilized or shared knowledge regarding sensitive US technology secrets and innovations during your time working at the talent program. If the consular officer or USCIS finds that you more likely than not have improperly shared knowledge with the talent program, that may be a ground for denial of your visa or green card application.

2. NVC may choose to wait on the fee bill until your priority date is about to become current

A reader asks:
I applied for NIW and submitted it at the beginning of this year. I applied for expedited application two months later and was approved early March. How long will it take to receive the NVC payment notice? Online status check shows that the case has been transferred to NVC.

Arthur Lee Esq. answers:
Congratulations on your NIW approval. After your I-140 is approved, your case is sent to NVC assuming that you chose consular processing as your means of applying for permanent residence. USCIS notifies NVC that your case has been approved, and instructs it to pre-process you for your permanent residence application through consular processing. Typically, NVC will first send you a welcome notice then contact you with a fee bill within 60 days of your petition approval. But if you are from a country with a long backlog, NVC may choose to wait on the fee bill until your priority date is about to become current. Therefore, if you have not received any communication from NVC, and your priority date is current or about to become current (per the “Date of Filing” chart), you may wish to follow up with NVC.

1. If I-485 is current and past processing times, you can place a service request online

A reader asks，
In September 2021, the I-485 I submitted was EB-1B and the PD has been current. At present, it has been two years since the approval, and it is still pending. The lawyer said that currently approval is usually within one year. Can I urge USCIS to take a look at the case?

Arthur Lee, Esq. answers,
Processing times for employment-based I-485 cases are different in each local field office and jurisdiction. You should ascertain which local field office or service center is adjudicating your I-485, and then look up the processing times here: https://egov.uscis.gov/processing-times/. I note that in many jurisdictions, including New York City, an employment-based I-485 filed in September 2021 would be past processing times. While there is no way to “urge” USCIS to look at your adjustment of status case, there are mechanisms to check your case.  As your case is past standard processing times, you can place a service request at https://egov.uscis.gov/e-request/Intro.do. Here, you may select “past processing times” and enter in the information on your case and inquire on its status. Although USCIS does not provide time estimates for responses on these types of requests anymore, you can likely expect a response within 30 days, hopefully of some substance. Another alternative is to call the USCIS “contact center” at 1-800-375-5283 to gather status updates on your case and inquire on what progress a USCIS “agent” sees on your case. The USCIS agent may also request that your officer look at your case (same effect as placing a service request online). It is important to keep your records of your service requests and your communications with “contact center” officers; if these requests are unsuccessful or yield unsatisfactory responses, you may do an ombudsman request, in which a DHS ombudsman staff member requests that USCIS looks into your case. Best of luck to you.

2. A request for reconsideration must come within 30 days of the denial

A reader asks,
Today I learned that PERM did not have an audit and was directly rejected. The reason was that one of the skills did not appear in the experience letter of the previous company. It’s an oversight on the part of the lawyer. Now, lawyers suggest reconsidering and re-filing together. Is there a high chance of reconsideration? It’s not that I don’t want to file again. I really don’t know if I can convince my boss to apply for me again in this situation.

Arthur Lee, Esq. answers,
I note that it is not common practice for attorneys to upload prior experience letters to ETA 9089 to the Department of Labor. Signed prior experience letters are typically reserved for the I-140 stage after the ETA 9089 is certified. Based upon your question, I assume that your facts are correct and if that is the case, your attorney prepared the relevant prior experience sections incorrectly in having requirements in your PERM job that were not met by your prior experience, education, or training. Specifically, it seems based off your description that your attorney failed to mention one of your skills in your prior experience summary that was one of the job requirements. In such a case, you may have significant trouble succeeding on a request for reconsideration as such does not allow additional evidence that was not originally filed with the ETA 9089. A request for review at BALCA also does not allow additional evidence. Therefore, unless your attorney’s description of your “skill” in your prior experience and the “skill” required in your PERM position are arguably a match and/or open for interpretation and you can meet the burden of proof in demonstrating that your adjudicator erred in his/her decision, your chances of winning a request for reconsideration appear to be low. Please note that a request for reconsideration must come within 30 days of the denial, and a review by BALCA must also come within 30 days of a denial by DOL or affirmation of the denial on reconsideration.

3. You may request a duplicate receipt on eRequest if you did not receive one

A reader asks: 
I am an EB-2 green card applicant. The application documents for the primary and secondary cards sent by UPS to the lockbox in Chicago in April showed that they had been signed for that month, but so far I have not received the receipt, and the check has not been cashed. I want to ask, is this normal? How long after delivery should I receive the receipt?

Arthur Lee Esq. answers:
Typically after a month, the check(s) will have been cashed and you would have received a filing receipt. You may wish to check whether your filing was sent to the correct address. Please note that filing addresses are different due to a myriad of factors including whether you are filing a standalone I-485; whether you have other applications such as I-765 and I-131 filed concurrently with it; I-485 category, etc. If you have filed your application to the correct address, but have not yet received a receipt, you may wish to call the USCIS contact center and try to locate your file by informing the officer of your “A” number if you have one. If you get a receipt number, that solves the issue, and you may request a duplicate receipt on eRequest if you did not receive one. If USCIS does not have a receipt for your case (which is likely because your check has not been cashed), you can email lockbox support at lockboxsupport@uscis.dhs.gov. In this email, you should include your name, “A” number if you have one, address, telephone number, and how you paid your filing fee. Please explain in your letter that you have sent your case to this lockbox, and it has been delivered and signed for, but that your case has not been receipted yet nor checks cashed. Hopefully through assistance by Lockbox Support USCIS will locate your case. If all else fails, you can refile your case assuming you have kept copies of all evidence–just issue a new payment. If your payment with your initial submission is checked, then contact the bank and cancel your second payment. Best of luck to you.

4.  You can use an approved EB-2’s priority date to apply for another employment based petition

A reader asks,
Since EB-1 also has a waiting period now, if I apply for EB-1 while I already have an EB-2 PD, will my PD be re-established or will the PD of the newly applied EB-1 be the same as the original EB-2 PD? If it is not the original EB-2 PD, will the application be invalidated?

Alan Lee Esq. answers,
I will assume that the EB-2 petition has already been approved. If so, and there are no applicable grounds for revocation, you can use the priority date for purposes of applying for another employment based petition, including EB-1. As your EB-1 case is now scheduled, I assume that you have already filed form I-485. Generally to accord an earlier priority date, you would request that the earlier priority date be assigned when you file the new I-140 petition. If you did not, hopefully the officer at the interview will allow for the transfer of priority date. If not and the EB-1 petition was filed without a current priority date, there would be a problem. If filed with a current EB-1 priority date and the date has retrogressed, the I-485 filing would still be valid although you might have to wait for the EB-1 date to again become current again before the officer can make a final adjudication on your case.

5. A NIW petition may affect the renewal of F-1 to return to the United States

A reader asks:
I am in my first year of postdoc OPT, studying for a PhD in the United States, and my current student visa F-1 has expired. I plan to apply for NIW and will it affect my return to the United States after returning to my country? Because F-1 is a non-immigrant visa and applying for NIW has immigration intent, will it affect the renewal of F-1 to return to the United States?

Alan Lee Esq. answers,
As you note, a F-1 visa is one requiring nonimmigrant intent. A NIW petition on form I-140 is an immigrant visa petition, a contrary concept. You may have problems renewing the F-1 visa since one of the questions on the DS-160 application form for a nonimmigrant visa is “Has anyone ever filed an immigrant petition on your behalf with the US Citizenship and Immigration Services (USCIS)? If YES, explain.” It may increase your chances of visa renewal to apply for the NIW petition after returning to the US.

1. After being fired and H-1B grace period is up, you can try to return to school to maintain nonimmigrant status

A reader asks:
The first time I applied for PERM in 2020, I was audited and I submitted supplementary materials. In early 2022, I was notified that it was rejected. The reason for rejection was that the recruitment advertisement did not comply with regulations. In mid-2022, the company was acquired, and the new company ran a second PERM and encountered a hiring freeze. After waiting for 6 months, I submitted the second PERM application in October 2023. However, I was suddenly fired last month and the PERM is still being processed. It is now the 6th year of H1-B and is valid until November. I have interviewed with several companies lately, but after chatting with HR, I was rejected. Some companies require to have I-140 in the 6th year. Some said that the company does not apply for PERM this year. They also contacted the company where I was fired. After the first round of interviews, they arranged for a second round of interviews next week. The result was two days before the interview. HR called and said role restructure, and the interview was canceled. I want to apply for NIW, but I only have a Master’s degree in CS from the US + work experience as a coder. I have not published any papers or participated in academic conferences. There are only more than 30 days left in the 60 day grace period, and I feel like I can no longer find a job due to status issues. What should we do in this situation now?

Arthur Lee, Esq. answers,
Based upon your summary of your education and work experience along with your lack of published papers and academic conferences, I do not believe that you would be eligible for EB-2 NIW. Unfortunately, your pending PERM will no longer be valid since your company laid you off (unless they agree to continue to sponsor you with a promise of having the position ready for you at the agreed wage upon your green card approval). Therefore, you would likely need to start over and find another company to agree to sponsor you from the beginning of the PERM process.
As you only have 30 days left in your 60 day grace period, you will need to either find a way to maintain your nonimmigrant status or leave the United States. To maintain your nonimmigrant status, you may try to find a company to hire you on your 6th year of H-1B, although this may pose a challenge to both you and the company since you would be capped at working for until November, and then you will need to find ways to maintain valid working status or stop working and go back to school, or leave the US. If you leave the US for a year, your 6 year H-1B allowance would reset, but you would need to win the cap lottery again or find a cap exempt employer to be eligible to work in the US. If you are lucky enough to find employment overseas with a multinational company with a branch or affiliate in the US, and you work in a year in an executive, managerial, or specialized knowledge capacity, then the company can transfer you to the US to work in its related company under L-1 status for 5 or 7 years.
Other ways of maintaining your nonimmigrant status include going back to school and changing your status to F-1 for the duration of your education, or changing your status to a “B” visitor, during which you may interview for future jobs. Best of luck to you.

2. Although the new job salary is $20,000 less than before, those I-485 applicants with higher salaries will not be affected 

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

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

3. Although your consulate office is listed in China, you may be able to have H-1B interview in Europe 

A reader asks:
Currently, I am in a small European country and plan to enter the United States to work in the near future. When the first H-1B visa address was chosen in China, there was a high probability that it would be checked. Considering that the current work is very tight and the check-in time is long, can the interview address be changed from China to the country where I currently am in Europe? Also can I get my passport back during the domestic visa interview?

Arthur Lee Esq. answers:
Even though you listed your consulate office as one in China when you filed your I-129 H-1B petition, you may be able to conduct your nonimmigrant visa interview in the European country that you are currently in. You may wish to check the consular post website to see whether it has guidance on its attitude toward third country nationals. If it accepts such cases or you are a resident in the European country, you can file a DS-160 with the European country after your H-1B petition is approved, and schedule an interview there. You may need to provide reasons why you are doing an H-1B interview in a third country rather than your home country–it is likely that a consular officer will be satisfied with your answer that you are currently living in that country and that it is much more convenient than going to China to conduct the interview. On your passport, a consular officer in this European country or China will take your passport to process the visa. The consulate may hold on to your passport for administrative processing if needed, but once a visa approval or denial is issued, you will have your passport returned.

1. I-485 has been waiting for more than 180 days, you can submit I-485J to change companies.

A reader asks:
I am an H-1B programmer and have applied for EB-2, but the priority is not current yet. H-1B sixth year. I submitted I-485 using Form B in early October last year and had my fingerprints taken in December, but unfortunately, I was laid off. Recently, the original company was transferred, and I got an offer from another new company. The work intensity of the two cultures is almost the same. The new company offers a lot of money, which is a level higher. My understanding is that the original company can 100% protect the green card, but the new company offers a lot of money and the job content is also interesting. If the I-485 is less than 180 days, what is the probability of being RFE’d if I go to the new company to get the I-485? If I-485 is rejected and unfortunately, I am laid off again, can I still COS B-2 pending to buy time and find a job?

Arthur Lee, Esq. answers,
In this answer, I assume that you have an EB-2 I-140 already approved or that your EB-2 I-140 will ultimately be approved, and that your former employer did not rescind your I-140. As long as your I-485 has been pending for 180 days or more, you may put in an I-485J porting request. For the porting request to be successful, you must be in a job that is in a “same or similar” occupation as the position on your I-140. Since your priority date is not current, it is unlikely that you will receive any RFE since USCIS will not adjudicate your case until you have a date available. Anyhow, if you receive a request for further evidence, that is not a bad thing–this is an opportunity for you to file an I-485J porting request. Since you properly filed your I-485 in October and this question is now being presented in April, I believe that close to 180 days have elapsed from the filing of your I-485 application. In such a case, if you receive an RFE (which typically allows you 87 days to post a response), you can file an I-485J porting request in response to your RFE. As long as you file the I-485J response at least 180 days after you file your I-485 application, your porting application can be accepted. Therefore, if your RFE is issued at least 90 days after your I-485 submission, you are likely eligible for porting assuming your new position meets the eligibility requirements–just make sure that you don’t submit your RFE response with the I-485J until 180 days have elapsed from the filing receipt date of your I-485.
In order to protect your working status in case of an I-485 denial, you may consider extending your H-1B beyond a 6th year through an H-1B transfer/extension to your new employer. You may be eligible for the H-1B beyond the 6th year if your I-140 or PERM Labor Certification Application (ETA 9089) was filed more than 365 days ago or the I-140 is approved and the priority date is still not available. In this way, you will have extra time on your H-1B and can continue to file extensions until your green card application is approved or denied. If your adjustment of status is denied, you will still have the time remaining on your H-1B to continue working for your designated employer. During that time, and assuming that the denial reason does not impede the following, you may try again with the porting employer or try to find another employer willing to sponsor you for permanent residence.
If you do not take the H-1B extension route, you may still attempt to change status to B-2 to try to find a new job as interviewing for jobs is permitted under this status.

2. I-140 application will not affect the issuance of H-1B by the consulate.

A reader asks:
I haven’t been back to China for a long time. Currently, I have the I-140 approval letter and can only go back and apply for the H-1B visa before coming back. I-140 approval has not arrived yet. Is it difficult to return to China to apply for an H-1B visa? I wonder how long it will take to apply for H-1B now?

Alan Lee Esq. answers,
At this time, there appears to be more scrutiny of Chinese students, especially those in the STEM programs at the postgraduate level, by CBP at certain airports in the US. That being said, the H-1B visa is dual intent, meaning that you can have both immigrant and nonimmigrant intent at the same time. So the fact of the I-140 filing should not affect any decision concerning H-1B visa issuance at the consulate. Current consular wait times in China to get an appointment at the American consulate are 56 days in Shanghai if there is an interview and one day if no interview required. Also seven days in Beijing if an interview is required and one day if not. Please note that this does not take into account any further time after the interview if your case is placed under administrative processing.

3. There is nothing that says that an individual cannot hold two full-time H-1B positions at the same time

A reader asks:
I was recently laid off by my company, but I am still on the payroll, and the Termination Date is just after 180 days of my I-485 pending. Now, I have received an offer from a new company, and they want me to start work as soon as possible, preferably next month. However, I have two questions now: 1. Is it illegal if I start work before the Termination Date? Can an H-1B holder work two full-time jobs at the same time? If I start work before 180 days of my I-485 pending, can I pretend nothing happened and then submit my 485J after 180 days? 2. If neither is feasible, what should I do? Of course, I understand that it would be safer if I could postpone it to after the Termination Date, but the new company only gave a verbal offer. I am very worried that if I start work too late, they will not give me an offer.

Alan Lee Esq. answers,
I am sorry to hear that you have been recently laid off by your company, but it is favorable that your termination date is so long after the filing of your I-485. On the question of illegal employment if you join the company now, there is nothing that says that an individual cannot hold two full-time H-1B positions at the same time although it may be difficult to see how this can be done in terms of the number of hours in every day. Joining another company without a proper work authorization is not legal even if you have filed the I-485 application. If you have an EAD card through the filing of form I-765 with your I-485, you may be able to legally join the new employer. After the 180 days has passed, you and the new employer can file the I-485J supplement so long as the new position is in the same or similar occupation.

1. Your EB-2 is nontransferable to a petition by your wife

A reader asks:
I am the most common PERM EB-2, and I am waiting for the priority date to become current. My spouse is currently studying for a Ph.D. and hopes to apply for EB-1 in the future. However, since EB-1 also must wait for priority date now, we are considering whether to file NIW to get the priority date first, as the NIW priority date can also be used for EB-1 later so the EB-1won’t have to wait too long. I want to confirm that if my EB-2 has been current, it will be of no use to my spouse? My spouse still must take advantage of her own NIW? Does our situation mean that our applications are completely independent from each other? If one of us is fast, we can get married before submitting the I-485 together. Whether there is no need to get married in advance in order to prepare the I-485 a few years later?

Mr. Alan Lee Esq. answers,
The rule of thumb is that follow to join privileges or being able to join cases ends at the time that the principal applicant is approved for permanent residence. That being said, USCIS and/or American consulate posts are prone to be more suspicious of cases in which the marriage comes about when the permanent residence benefit is close. As to your specific thoughts, you are correct that your EB-2 is nontransferable to a petition by your wife.  Your wife filing and having an approved NIW petition would give her a priority date that could be transferred to a later EB-1 petition.  If you are doing one case and your intended spouse is doing another, those cases are independent of each other and the dependent can join at the I-485 or consular processing stage. If you choose to marry late, please be aware that the circumstances of your marrying may be looked at harder than if you married earlier.

2. Porting your Employment

A reader asks:
I am in the central part of the country and have encountered layoffs. My current situation is that H-1B expires on July 30. RD is 173 days as of July 30th. It’s a bit hopeless to find a job in the next few days to renew the H-1B. I-485 has been submitted, but it has not been completed for 180 days. Some people say that as long as I am not scheduled for a green card interview during this period, I shall be safe. Is that so? Can I transfer into an F-1 and wait for green card? Or do I need to change jobs? or hope that my green card will be approved on July 30? Asked Emma, ​​said my case was in NBC for more information. PD is September 2019 and it is already current. If I find a job, do I need to submit H-1B and I-485J at the same time?

Mr. Alan Lee Esq. answers,
Generally, an employer sponsoring an applicant for I-140 and I-485 should have the intent to offer permanent employment at the time that the employer signs off on the I-140 and the I-485 J “Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA section 24 (J)”. If your I-485 pends for 180 days and you have a new employer in the same or similar occupation willing to continue your sponsorship and signs off on a new Supplement J, you can submit it to USCIS to attempt to port your employment to the new employer. In the meantime, you may consider applying for an EAD on form I-765 Application for Employment Authorization so that you can be available for employment with an employer other than your current one. Also you gave a certain date that your H-1B expires. Have you taken the 60 day grace period to find new employment into account? If you have a new employer willing to do so, it can also alternatively petition for a new H-1B on your behalf, preferably within the 60 day grace period.

3. For overseas immigrant case receipt, you can attempt to ask for assistance by emailing

A reader asks:
I recently applied for NIW. Because I applied from overseas, my $700 payment had been deducted, but I have not received a receipt number yet. I asked Emma today and she didn’t find my application information, and it has been more than a week since the fee was deducted. How long does it take to get the receipt number from Emma?

Mr. Alan Lee Esq. answers,
The good news is that your case has been accepted by USCIS since you somehow know that the $700 filing fee has been deducted. Receipts from USCIS for persons filing from overseas can cause headaches. We have seen receipts for overseas clients being returned to USCIS for non-delivery. A mailing address in the US may help as is having a legal representative in the US since USCIS would send a copy of any notices including receipts to the legal representative. Emma is not a tool focused on giving receipt information back to individuals. Receipts from USCIS to US addresses are generally received between 2-3 weeks from the time of sending out the petition or application to USCIS unless the case is filed online or through premium processing, in which case receipts come much sooner. You may attempt to ask for assistance by emailing lockboxsupport@uscis.dhs.gov. Hope that you receive your receipt soon!

4. You should stay with the employer for a period of time after obtaining permanent residence 

A reader asks:
I applied for EB-3 and wanted to get a green card. The reason why I wanted to get a green card was that I studied at the university in the United States and worked in the United States for five years after graduation. For nearly ten years, I felt that there were many ways out after getting a green card. I returned to China last year, and before that my green card was already current. Now I have the opportunity to transfer back to my old employer in the United States. I can submit I-485 and get a green card in one year. However, I plan to live in China long tern in the future, and I feel that the cost of returning to China after getting the green card is a bit high. In addition, I am a female, 29 years old this year. During the year after I returned to China, I didn’t find a partner in China. If I return to the United States for a year and delay another year, I will be 30 years old when I return to China. It will feel more difficult to find a partner or work in the workplace.

If the original boss supports the transfer back to the United States, he can apply for the L-1 visa and continue to use the previous I-140. If I am not with the current company, there will be no need for L-1 but H-1B, and no need to use the original I-140. I have about one year and five months left on my H-1B. I will need one year and 5 months to complete my PERM & I-140, then submit I-485.  Is there enough time?

Mr. Alan Lee Esq. answers,
I will assume that your calculation of about one year and five months left on your H-1B is accurate. If so, your timing plan is probably not viable in completing the PERM process through another employer. Currently it is taking approximately two years taking into account only the time required to obtain an ETA 9141 prevailing wage determination and the processing time of the ETA 9089 PERM application (19 months) which does not account for the further time required to set up the case and conduct recruitment along with preparing the I-140 petition. Your option to obtain permanent residence through a transfer back to your old employer and continuing the green card application appears more viable. Under either situation, you will have to stay with the employer for a period of time after obtaining permanent residence as US law requires an applicant through labor certification to show a commitment to work with the sponsoring employer. So you will have to think about timing and commitment in making your choice whether to come back to the US to pursue permanent residence or staying in China, your professed preferred long-term residence and marital location.

Overseas immigration visa? Adjustment of status? Which is better?

A reader asks:
When I submitted my I-140, I chose IV at the suggestion of my lawyer, which means I will have an interview in Guangzhou. But I have actually been in the United States and I don’t plan to return to China in the future. So, can I change it to submitting I-485 in China? If so, when should I submit it? The problem now is that I recently had an I140 with a very late PD (PD is not C) passed, but I found that when I checked the case status, it showed that the case was sent to the State Department. I am confused, does this mean that I will have to go back to China and go to Guangzhou to apply for an immigrant visa in the future?

Mr. Alan Lee Esq. answers：
The initial question should be why your lawyer advised you to choose immigrant visa processing rather than adjustment of status. If the lawyer’s advice is sound, then it may be detrimental to you to try adjustment of status. You should probably have another discussion with your attorney before making a decision to switch to adjustment of status. Procedurally, it does not matter much that the I-140 petition is now with the State Department. If it makes sense for you to adjust status, you can file form I-485, and USCIS will generally recall the approved petition from the National Visa Center. You or your lawyer can also attach a statement on the I-485 application that your approved I-140 petition is now with the National Visa Center and asking it to request NVC to return the petition.

1. I-485 has been submitted before being layoff, can apply for form I-765 

A reader asks:
I am in the central part of the country and have encountered layoffs. My current situation is that H-1B expires on July 30. RD is 173 days as of July 30th. It’s a bit hopeless to find a job in the next few days to renew the H-1B. I-485 has been submitted, but it has not been completed for 180 days. Some people say that as long as I am not scheduled for a green card interview during this period, I shall be safe. Is that so? Can I transfer into an F-1 and wait for green card? Or do I need to change jobs? or hope that my green card will be approved on July 30? Asked Emma, ​​said my case was in NBC for more information. PD is September 2019 and it is already current. If I find a job, do I need to submit H-1B and I-485J at the same time?

Mr. Alan Lee Esq. answers,
Generally, an employer sponsoring an applicant for I-140 and I-485 should have the intent to offer permanent employment at the time that the employer signs off on the I-140 and the I-485 J “Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA section 24 (J)”. If your I-485 pends for 180 days and you have a new employer in the same or similar occupation willing to continue your sponsorship and signs off on a new Supplement J, you can submit it to USCIS to attempt to port your employment to the new employer. In the meantime, you may consider applying for an EAD on form I-765 Application for Employment Authorization so that you can be available for employment with an employer other than your current one. Also you gave a certain date that your H-1B expires. Have you taken the 60-day grace period to find new employment into account? If you have a new employer willing to do so, it can also alternatively petition for a new H-1B on your behalf, preferably within the 60-day grace period.

2.  Withdrawal I-485 by mistake, attorney should rectify the situation as quickly as possible 

A reader asks:
I am currently preparing I-485 materials. Before my current company’s H-1B, a more complicated situation occurred. I would like to ask how to prepare the materials? The company made a personnel adjustment around April 2023, and I was not affected. However, the HR oolong put my name on the layoff list and sent it to the company’s lawyer to cancel the H-1B. The withdrawal application was submitted at that time. Later in September, I contacted the company’s lawyer. She realized that there was a problem before, so she quickly issued another H-1B application, added premium processing, and approved it quickly. The lawyer said that she was also applying to cancel the previous withdrawal application at the same time, so I now have two H-1B approval notices from the same company. According to the lawyer, the H-1B withdrawal application did not take effect, so there is no problem. Do I need to ask a lawyer for any documents to prove this? The I-485 documents only include the two H-1B approval notices. Do I need to submit documents for the application to revoke the H-1B and the subsequent revocation of the H-1B?

Mr. Alan Lee Esq. answers,
It appears that your company’s attorney attempted to rectify your situation as quickly as possible after you made her aware of the mistake. It is commendable that she was also attempting to cancel the previous cancellation notice to USCIS at the same time. On the I-485 application, it might be helpful to have the lawyer explain the entire sequence of events so that USCIS has a complete understanding of your situation prior to making an adjudication on your I-485 application. If possible, the lawyer can also use the opportunity to explain if and how you might still be eligible for I-485 adjustment even in the event that USCIS does revoke the first H-1B petition in April 2023.

3. Consular officers do keep historical records

A reader asks:
My status expired in 2018, so I had to apply for a dependent status. Later, I did not have a visa until my OPT expired. After moving to Canada, I was asked about the L visa, but I did not expect it and was not prepared, which led to the rejection of my visa in 2021. Now, more than a year has passed, and GK5 has passed. I want to try to go back with an L visa. However, because the L visa is valid for 5 years, the L visa I-797 used is still the same. I heard that in the United States, visa interviewers will not dig up such historical records after 5 years. Is this true? The last time my visa was rejected in 2021, I was asked about the rejection on the new DS160. Do I need to fill in the reason for the rejection directly? Is the specific explanation 212A6C? Or can it be said that I was not well prepared before?

Mr. Alan Lee Esq. answers,
Consular officers do keep historical records, and it is likely that your prior refusal will be on the database. You have said that the reason for rejection in the past was 212 A6C. That ground is inadmissibility for fraud or misrepresentation in attempting to enter the US. On the DS-160 nonimmigrant application form, there are two questions relevant to your situation – the first is, “Have you ever been refused a US visa, been refused admission to the United States, or withdrawn your application for admission at the point of entry? If yes, explain. When? Where? What type of visa?” and “Have you ever sought to obtain or assist others to obtain a visa, entry into the United States, or any other United States immigration benefit by fraud or willful misrepresentation or other unlawful means?”  To the first question, you would have to answer in the affirmative and answer the questions and state the circumstances that you believe are in your favor. If you believe that your explanation is thoroughly sufficient to explain that you did not commit fraud or misrepresentation, you may decide to answer “no” to the second question. The consular officer, however, should have a full understanding of the circumstances surrounding the prior denial when he or she finishes reading the DS-160 application.

4. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent

A reader asks:
I applied for EB-1B, and the waiting period has come. I just got my green card. My spouse and I submitted I-485, but it is still CRP. I would like to ask, is the subsequent review of the spouse’s status completely independent or will it have a certain impact?

Mr. Alan Lee Esq. answers,
A dependent spouse’s I-485 application is generally dependent upon the eligibility of the principal applicant, you. You have already received your green card, so that means that your principal case has been deemed approvable. The dependent will usually be approved if USCIS believes that the relationship is bona fide and that the dependent is not inadmissible to the US. Where marriages are concerned, USCIS may look into the marital relationship, especially if the couple married close to the time of submitting the I-485 applications. USCIS may also be conducting background clearances, and these are sometimes delayed. The agency wants to ascertain that applicants are not terrorists, have no criminal records or non-excludable criminal records, etc., before granting permanent residence. Dependents may also have had their own immigration file records in the past that USCIS will have to review before making a decision. It is not unusual that a principal applicant’s case will be adjudicated prior to that of the dependent.