Q&A’s published on the World Journal Weekly on July 9, 2023 – 1. Get Your Green Card Faster with Cross-Chargeability 2. O-1 Visas Does not Have a Dual Intent Provision 3. PERM now Takes Approximately 9-10 Months for Analyst Reviews 4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

1. Get Your Green Card Faster with Cross-Chargeability

The situation in Silicon Valley this year is so bad, that I, without green card, am afraid of being layoff. I want to know if there is any way to get my green card quickly. My current background is: I graduated from a master program in the summer of 2019, and I got selected for H-1B before graduation. I started to apply for a green card on the first day I joined Amazon, but I didn’t get the I-140 approval until August 2021. I don’t know when I can get my green card.

A colleague pointed out two ways for me: 1. Marry a boyfriend who is not born in mainland China, and use cross-chargeability to jump in the queue to avoid waiting in priority date to be current. The advantage is that I don’t need to spend extra money and time. The disadvantage is that we are all a bit perfectionist. We want to experience the beautiful moments of life such as engagement and wedding, and we don’t want to rush just to get a marriage license. I don’t have a PhD degree and only have three papers, which with less than 100 citations. Is there any hope for me to apply for EB-1? 2. Per my current priority, when will I get my green card? 3. If I can do cross-chargeability, when can I get the green card?

Mr. Lee answers,
Cross-chargeability is used to assign the country chargeability of one spouse to the other where the dependent spouse is from a country with a more favorable immigrant visa availability in the petition category. For example, an applicant with EB-2 or EB-3 category approval from China is facing immigrant visa backlogs of 6/8/19 under EB-2 and 4/1/19 under EB-3 (June 2023 visa bulletin). If married to a spouse from a country like Japan or Taiwan, the backlog for EB-2 is much lesser with visa availability open to those who began EB-2 cases before 2/15/22 and EB-3 before 6/1/22. This presupposes a bona fide marriage of course, and not a marriage done as a favor, or as part of the conspiracy for the other party to gain immigration while the principal gains faster immigration. With cross-chargeability and your current priority date, the time to obtain permanent residence in a normal situation would depend upon the speed of the USCIS service center handling the I-485 applications and whether it has questions concerning your applications. The two service centers handling the bulk of the cases for employment-based adjustment have posted times to discourage persons from inquiring – the Nebraska Service Center has a posted time of 27 months, and the Texas Service Center 42.5 months. These timelines hardly seem realistic at this point and should be taken with a large grain of salt. To your other questions, there does not seem to be that much hope for you to apply for EB-1 given your described qualifications. I cannot estimate how long it would take for you to process your case without cross-chargeability as you did not give your priority date nor petition category in your fact situation – however, your priority date would have to become current for filing under your petition category before you could file for an adjustment of status application. At that point, you would look at the current processing time of USCIS for an estimate of how long your case would take to be processed to finality.

2. O-1 Visas Does not Have a Dual Intent Provision

My EB-1A was approved, and it may take more than a year to wait for the interview at the Guangzhou Consulate. Is there any way to go to the United States ahead of time? I heard it would be okay if it was an O-1 visa? In addition, if I land in advance, do I still have to go back to China for a Consulate interview after I receive the interview notice?

Mr. Lee answers,
If you qualify under a nonimmigrant working visa, you may be able to go to the US ahead of the time that you would have to wait for the interview in Guangzhou. As an EB-1A, your qualifications are most likely enough to qualify you for the O-1 visa. I do not know whether your EB-1A was petitioned for by an organization or whether you self-sponsored yourself, but kindly note that O-1 visa sponsorship requires a petitioning organization or agency. If you have a petitioning organization or agent, then you may be petitioned and able to come into the US under the O-1 visa. One other note is that an O-1 visa unlike H-1B specialized occupation and L-1 intracompany transferee visas does not have a dual intent provision under which an individual’s intent to immigrate is not relevant to the adjudication. Even if O’s are in a gray area of intent, most American consulates will issue O-1 visas even where the I-140 petition has already been approved assuming that there are no ineligibilities. If you are in the US pursuant to an O-1 visa, it would perhaps be more courteous and correct for you to return for the interview in Guangzhou instead of attempting to adjust status in the States.

3. PERM now Takes Approximately 9-10 Months for Analyst Reviews

I have filed a PERM, but it hasn’t yet been approved, and my I-140 is not yet approved. For family reasons, I need to relocate to an office in another state. My questions are: will this have any impact on my pending PERM? Some lawyers said that the current PERM would continue to go on, the priority date is locked as the I-140 was filed, and then PERM needs to be done again at the new address. My PERM has filed almost 9 months, why I have not heard back anything? Is the company cheating on me? what do I do?

Mr. Lee answers,
PERM labor certification applications test whether there is availability of US workers in a certain area. It is clear from your questions that the recruitment has already been conducted, the application filed, and the move in question a future move. When a job relocates to a state other than what was put down as the work location in the PERM application, the application usually needs to be done all over again. An exception may be where the job is the same, the employer is the same, and the new position is within commuting distance of the worksite address in the application. Assuming that the labor certification application is approved and the new worksite within commuting distance, your company’s attorney would make the argument for the validity of the labor certification to USCIS in the I-140 petition. To your query as to why there is no news although your PERM application is almost 9 months old, it appears that the Department of Labor is currently taking approximately 9-10 months to reach labor certification applications for analyst reviews.

4. Applying for EB-1B, Job Opportunities and I-140 Employers are Indispensable

I have a doctor degree in Phys from the West Coast. I have been working in New York after graduating at the end of 2020. My citations are 900+, had some news reports, and 2 review papers. After graduation, I did not write any articles. Recently, I have been asking for magazines’ editors to get some review opportunities. In the past two years, I didn’t think about the green card, and I just wanted to apply for EB-1A recently. The lawyer said that my articles are relatively old and asked me to apply after I have had new articles published. However, because I changed my field, it is more difficult for me to publish articles again. Is there any chance for me to get my NIW approved? How about EB-1B?

Mr. Lee answers,
It is impressive that you have 900+ citations with news reports, and two review papers. It is understandable that the lawyer would be concerned and taking on an EB-1A application for you if your article is relatively old. One of the criteria for EB-1A is that you have sustained national or international acclaim. Insofar as NIW is concerned, having the PhD is certainly helpful, but you must also be able to convince USCIS that whatever endeavor you will be working on is substantial and in the national interest; that you are well-positioned to advance the endeavor; and that on balance, it would be beneficial to the United States to waive the job offer and thus the labor certification requirement. For EB-1B, you need to fulfill at least two criteria of which your articles, news reports, and review papers may be able to satisfy – however, EB-1B is not a self -sponsored petition, and you must not only be able to prove that you are an outstanding researcher, but also that the petitioning organization has a research component in which you will be performing research.  Although a labor certification is not required in EB-1B cases, a job offer and petitioning I-140 employer are necessities.