Category: Q&A

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.

1. Pass the US citizenship to children overseas

I’d been in the United State from 2012 until I got my citizenship in 2018. Then in 2019 I traveled overseas. I got married and had 2 kids and came back to the US in 2021.  How can I bring my wife and kids to the U.S.? Can I pass my citizenship to my kids, if so how ?

Mr. Lee answers,
It appears that you have the necessary residence in the US (five years with at least two of which were after the age of 14) to transmit US citizenship to your legitimate children. You should make an application to the consulate or embassy on form DS-2029 Application for Consular Report of Birth Abroad of a US citizen child. For your wife, you would have to file an I-130 relative petition for her, have that approved, and she would ultimately interview for an immigrant visa at the American consulate or embassy having jurisdiction in the home country to issue immigrant visas.

2. CSPA

My brother’s application for immigration visa was filled in April 2010 approved in May 2015 and is in visa center he has two kids who are both over 21. Will they be able to migrate with parents if they are unmarried and when we can expect a visa center letter for further processing?

Mr. Lee answers,
Under the Child Status Protection Act (CSPA), the children are given a credit of five years to their age being under 21 due to the visa petition pendency of five years. It is more than likely that the children will not be able to emigrate with the parents as the counting time of the children’s ages will only stop when the priority date becomes current. Currently the sibling category final action date on the February visa chart is only available to those filing petitions prior to 3/22/2007, for China born. On the question of when you can expect a visa center letter for further processing, that will usually not come until the priority date is close to becoming current for visa availability.

3. I-485 filed in Nov 2022 with I-130 approved in June 2022, I 94 expiring in Jan 21st 2023. Option to travel outside US?

My parents got I-130 approved in June’2022. I filed their AOS (I-485) in Nov 2022, waiting to hear from USCIS. Their I-94 is valid till Jan 21’2023. They want to travel to China in Jan/Feb 2023. While waiting for I 485 approval, can I file their Advanced Parole (I-131) so that they can travel in Jan/Feb 2023? If not, Is there any other options which will allow them to travel outside US without affecting their I-485 application?

Mr. Lee answers,
Applicants for adjustment of status like your parents are only allowed to travel without disturbing the I-485 applications if they obtain advance parole. Unless the reason for their travel is emergent, they will not be able to receive advance parole approval in the short period of time before their contemplated travel. If the need is nonemergent, I suggest that they have a backup plan for travel later in the year. USCIS has been improving its times on most advance parole applications, but there are still many languishing for over six months. Hope that helps. 

4. I want to bring my parent her in the US. Can my boyfriend be my joint sponsor?

How can I bring my parent here in US. I am a stay at home mom, unemployed but only my partner (boyfriend ) is the only one providing for us. Can he be my joint sponsor?

Mr. Lee answers,
I will assume that you are asking if your partner can be your joint sponsor for purposes of sponsoring your mother for a permanent immigration visa. He is qualified if he is a US citizen or permanent resident, and has sufficient income and/or liquid assets to sponsor taking into consideration everyone that he is presently supporting and has sponsored for immigration in the past. Your partner would do a separate I-864 affidavit of support from you listing himself as joint sponsor. You would have to do your own, but your mother would be relying upon your partner for the financial support. Please note that you cannot submit one form only for yourself and your partner as he would not qualify as a household member. 

5. Can I get a work permit while waiting for the extension of my B1/B2 visa and F1 application?

I have been in the USA for almost six months with my i94 expiring in two weeks. I just applied for an extension of my i94, with an application for an F1 visa. I will love to work or do something to sustain myself while this application is pending. this is because of the difficulties associated with coping with my personal upkeep and my kids’ college expenses in the USA.

Mr. Lee answers,
Unfortunately, USCIS does not give employment authorizations for individuals attempting to change status from visitor to F-1 student. For that matter, it does not give automatic employment authorization to those who successfully change to F-1 student. Such successful applicants are allowed to work part-time on campus, but outside only with the approval of the educational institution under curriculum practical training or with USCIS permission for optional practical training or if there are severe economic hardship conditions which have occurred after one academic year of schooling or if there are emergent circumstances which are generally defined by USCIS as world events that affect a specific group of F-1 students and which causes them to suffer severe economic hardship, including, but not limited to natural disasters, wars and military conflicts, national or international financial crises.

6. I applied for change of status in Dec 2022 and my current B2 visa expires in February. Does my application cover extension of stay?

Since my application I have not received a response from USCIS. I have not applied for extension of stay. Does my application cover extension of stay? Am I suppose the repeat form 1-539 – Application for extension of stay before my I-94 expires or does my application payment of $450 covers extensions of stay?

Mr. Lee answers,
As you timely applied for a change of status to F-1 student, you are allowed to remain in the US while awaiting a decision on the change of status request. USCIS last year changed its policy which had previously required B-2 individuals applying for change of status to student to keep maintaining B-2 status and keep filing extension requests until the change of status was adjudicated. Please note, however, that other rules still apply that you cannot become a student until USCIS approves the change. 

1. Biometrics appointment for I-131 still needed?

I filed I-131 and it was accepted, and the fee taken. I have not received a biometrics letter but the status is updated to fingerprints taken. Does this mean they are using biometrics from a previous application and I do not need to wait for a biometrics appointment before leaving the US? The status on my I-131 case said, “As of XX, 2022, fingerprints relating to your Form I-131, Application for Travel Document, Receipt Number XXX, have been applied to your case.”

Mr. Lee answers,
USCIS is attempting in as many ways as it can to reduce backlogs that were caused by the pandemic and the Trump administration. Part of the effort is to reuse the biometrics whenever it can since fingerprints do not change over time. Either you failed to completely read one of the notices saying that the agency would reuse your biometrics or USCIS failed to send that one out or it was lost in the mail. The notice that you now have seems pretty clear in indicating that the agency will reuse your biometrics.

2. I-751 was submitted and finger prints were taken. How long is the wait time?

My Case, removal of conditions for the green card was submitted on 01-06-2021 my green card was expired on 01-20-2021. I received a notice for an extension of 24 months after my case was submitted which will expire in Jan 2023. My case was sent to Potomac service center, should I need a raise a E-request to process my pending case.

Mr. Lee answers,

If the notation of resident status on the I-751 receipt is close to expiration, the recommended path is to communicate with the USCIS Contact Center and arrange an infopass with the local USCIS field office so that you can present your passport and receive an I-551 ADIT stamp continuing your resident status during the time that USCIS is adjudicating your I-751 petition. USCIS will generally not expedite an application or petition on the basis that the individual’s status is expiring, especially where there is another path.

1. Can I acquire any type of citizenship or permanent residency from my deceased US citizen father?

I was born in 1977 and my father was born in the 1950s. He acquired his green card when he retired from working for the us government in the Panama Canal for 20+ years. We then moved to the us in 2007 and he filed a form I-130 and form I-485 petitioning for me, his married daughter over 21 years old, this was obviously denied because when he first filed he was a permanent resident at the time and our lawyer was an inexperienced scam artist who knew that I didn’t meet the requirements but still decided to submit the application and take thousands of dollars. My father became a naturalized US citizen in 2016 but I never submitted another application because I was waiting to hear back on the first one. However, my father ended up passing away in 2021 and only a few months after did I finally get a response that my application was denied. Since my father passed I am not sure if I am able to re submit another application although I do have an approved form I-130. What can be done?

Mr. Lee answers,
Your fact situation is confusing to me as you say that the application was denied, that you did not file another application, but that you do have an approved form I-130. The confusion lies in your stating that your father filed for you, a married person, when he only had the green card – and that would be a filing that does not conform with the law of eligibility.

Nevertheless, assuming that an I-130 petition was approved at some point for you prior to the time of your father’s passing away, and you were in the US at the time, that petition might be a basis for a permanent residence application. As the facts are unclear, I suggest that you should consult with an immigration lawyer to go over your entire situation and for him or her to explore with you any steps that might be able to be taken. 

2. Sibling info on GC for parents

If I am applying for parents Immigrant visa, do I put the info for my other siblings who are all over 21 years of age, and not being applied for on the Family section of the petition for Alien Relative, my sibling is a GC holder via employment.

Mr. Lee answers,
In our office, we usually put all sons and daughters of the beneficiaries on the I-130 form. I note that the form itself does not limit the term “children” although the Immigration and Nationality Act defines children as being under the age of 21 and unmarried. Also, the form instructions refer to both “unmarried children” and “married children”. Additionally, some of our clients are uncomfortable with the idea of leaving out any of the 21+-year-old children, and so we generally include them. If there is a reason for which our clients do not wish to mention such children, we will leave them out. 

3. Can immigration officers look past inadmissibility?

My father is currently in China waiting for his interview appointment. He went back to China two years ago. My mom is a citizen and sponsoring. I believe he will be found inadmissible and have to file for a waiver because he reentered the US after being deported in the 90s. He has no criminal record and started his own business while living in the US. He says that there is a chance that the immigration officer has the right to overlook his inadmissibility and approve him for a green card? Is this possible?

Mr. Lee answers,
A US consular officer does not have the authority to overlook grounds of inadmissibility. If your father was deported previously, one question is whether he served out the entire time of the bar before coming back to the US. When he reentered the US, did he enter legally or illegally? If he entered illegally before April 1, 1997, he would be eligible to file waiver applications after his interview with the US consulate. On the other hand, if he reentered illegally on or after that date, he would have incurred a permanent bar under which he will not be able to request permission to return to the US as an immigrant until 10 years after he left the US a couple of years ago. The granting of permission to reapply at that point would be in the discretion of the Attorney General.

4. Can I keep using my STEM OPT EAD even though I get my C9 EAD?

I have a valid STEM OPT EAD until 2024. I am going to apply for an adjustment of status soon to obtain a marriage based green card. When I get the c9 EAD in hand while the I-485 is pending, can I still keep using my STEM OPT card? Or should I use my C9 EAD because I applied for an adjustment of status?

Mr. Lee answers,

I do not believe that it makes much difference which EAD you will be using. You are authorized to work under your STEM EAD and that is not revoked by your applying for adjustment of status and obtaining employment authorization (C )(9) on the basis of that. However, please note that the STEM EAD is tied to the field of your degree while a (C )(9) EAD is open market and can be used for any employment.

1. Can Shoplifting Affects a Citizenship?

 I had a case of shoplifting in Aug 2015, I was arrested and detained for 2 days in the county detention facility, my charge was a misdemeanor class B ($50-750) I participated in a program called retail theft pretrial intervention and I obtained a dismissal from my case in May 2016. In January 2022 I applied for my American citizenship and I am waiting for my interview. I’m a little nervous because I certainly don’t know how this can affect me when it comes to being interviewed?! I obtained my permanent residence in 2017 and since that date I have only had two traffic tickets also dismissed by the court. I don’t know whether to mention these tickets during my interview?! I also don’t know if the program in which I participate is any of the programs mentioned in the N400 in part 12. I feel a little distressed about my background. What I need to do?

Mr. Lee answers,
In your fact situation, your case of shoplifting was in August 2015, well over five years old by the time that you applied for your citizenship in 2022. I also note that you said that you received your permanent residence in 2017, and I assume that you disclosed the shoplifting offense in your immigration application papers. The period of good moral character is five years, and this should not be held against you. I suggest, however, that you obtain a certified copy of the court disposition to take with you to the interview if you have not already presented it as part of your naturalization application. On your other questions, I do not believe that pretrial intervention and dismissal qualify as one of the programs  mentioned in part 12, item 26, if you did not have to make an admission of guilt. Also you should mention the traffic tickets as item 23 of the same part asks whether you have ever been cited, and a traffic ticket is a citation. 

2. What Will Happen to a Child’s (18 years old) Derivative Immigration Visa Status If His Principal Immigration (Parents) Do not Maintain Green Card?

My elder brother will get immigration visa (F4) his son / wife will get the derivative immigration visa as well. He might have to go back and won’t be able to maintain his green card / permanent residence in USA. His Son wants to stay and do his bachelors and pursue a career in USA. Can his son stay in USA with Green card without his parents staying in USA?

Mr. Lee answers,
An applicant who is sponsored for immigration has an obligation to make the US the country of permanent domicile. Failure to at least initially come and establish a permanent residence in the US (spending a period of time initially in the States) makes the green card statuses of the dependents insecure and subject to challenge. If your brother first enters the US and stays here for a period of approximately six months, it would make it much harder for DHS to challenge the dependents’ statuses even if your brother’s green card is taken away at some later point for no longer maintaining status. 

3. Class 3 Misdemeanor – Speeding. Will it Affect my H-1B?

I received a criminal speeding ticket in AZ a few days back. Just speeding and nothing else. Its a class 3 misdemeanor speeding ticket. I’ve hired a lawyer and planning to contest it. Will a speeding misdemeanor affect job opportunities like during background checks? Will it affect my H1B?

Mr. Lee answers,
I do not practice criminal law, but in googling criminal speeding in Arizona, it appears that excessive speeding is traveling at more than 20 mph over any speed limit in the state, and that it is a class III misdemeanor for which the maximum penalty is 30 days in jail, a $500 fine plus an 83% surcharge and up to one year of probation. Those are pretty hefty penalties for what does not appear to be a big crime. That being said, I do not know whether having the misdemeanor on your record will reduce your chances of obtaining a good job opportunity. However, such should not affect your H-1B status as it does not appear to be a Crime Involving Moral Turpitude (CIMT), which is usually the line used to determine whether DHS should begin to become involved. I note that visas have an element of discretion, even H-1B’s, and if you had to or wish to obtain a visa in your passport, the incident could result in a consular officer looking harder at your application, especially if there is a finding of guilt. 

4. H-1B Visa

 I am currently living in the USA on H4 visa on my wife’s H1B visa. While our green cards are in process, she has no EAD for me to work. I have previously worked on L1A in the USA and did a change of status from L1A to H4 visa. While we are waiting to have my wife’s PWD approved, I have been contacted by companies to interview. A company is willing to sponsor my H1B visa. (never been on H1B in the US) I am trying to understand – when can the company file for my H1B petition – is it only in March/April ? Can they put any start date or is it always Oct 1 of the same year? As far as I know, fresh applicants apply for lottery in Mar/Apr and then they work on H1B from Oct1 – most of them have an interim visa that allows to work between those periods. I do not have an interim work permit – what are my options? 

Mr. Lee answers,
Unless the organization that is interested in hiring you is cap exempt (institution of higher education, nonprofit organization affiliated with an institution of higher education, nonprofit research organization, or governmental research organization), it must go through the selection process to hire H-1B workers. Such involves registering the company and possible candidates in March, after which USCIS will announce the selectees in the last week of March, and allow H-1B visa petitions to be filed beginning in April for work to begin in October assuming that petitions are approved in time. A few options to consider are searching for a cap exempt organization, applying for O-1 extraordinary alien status if you are extraordinary, or working under H-4 if your wife is able to obtain an I- 140 approval.