1. To Apply EB-1A, You Must Show that Your Immigration Will be of Benefit to the US
I am in my fourth year of PhD and I am preparing documents to apply for EB-1A. The lawyer asks for an employment letter which would state that after my graduation I would be hired. My school advisor already knew that I would not stay as a postgraduate student, and I wrote in my NIW I also indicated that I would find a job in an industrial field. So if there is no offer letter from my advisor, my lawyer said I had two other options: one is get an offer letter from others; the other is actively applying for jobs. My questions are: 1. Is it too late to find a job now? 2. The document says that the advisor’s offer letter is the best of these three. Therefore, is it for a doctoral degree graduate to apply for EB-1A with a postdoctoral offer? 3. If #2 is true, is there any bad influence if I don’t go for postdoctoral degree?
Mr. Lee answers,
You can generally start a green card EB-1A case whenever you choose and unless you have some unusual time pressures, it is not too late to find a job that can give you an employment letter. On the type of job and your lawyer’s document saying that the school’s job letter is the best among the three options, it may well be that your education and extraordinary knowledge are best used in a research capacity and that academia may offer the best opportunity. Although the EB-1A category criteria are different from those of a national interest (NIW) case, you must still be able to show that your immigration will be of benefit to the country. If you are able to secure a position in industry in which you will be able to utilize your knowledge and skills in an advanced manner, e.g. scientist as opposed to technician or analyst, such might also be an acceptable offer of employment.
2. Don’t Let I-485 Fall into a Black Hole Because of EB-1
I applied for EB-1, but received RFE for I-140. I have filed an EB-2 application and I-140 has been approved. Can I file my I-485 directly on the basis of my approved EB-2? Do I have to cancel the pending EB-1 application that has been RFE? I am worried about my application going into a black hole.
Mr. Lee answers,
I will assume for purposes of your question that there are no outstanding contradictions between the information provided in the EB-1 and EB-2 petitions. As long as your priority date is current for EB-2, you should be able to file your I-485 application with the approved EB-2 petition as long as you are maintaining legal status or 180 days or less of illegal status have elapsed and you entered the US with a visa. Assuming the above and that you are not otherwise inadmissible, you do not have to cancel the pending EB-1 petition although there would then seem little reason to keep it if you already have an approved EB-2 petition and the priority date has open visa availability. A visa petition is a preliminary petition and is not an application for immigration itself. An actual application is submitted through form I-485 Application for Adjustment of Status to Permanent Residence or if consular processing your case, form DS-260 Application for Immigrant Visa. Kindly note that withdrawing or canceling your EB-1 petition does not mean that USCIS will discard it. It will keep it although it may or may not become part of your permanent file. Your I-485 should not go into a black hole on account of the EB-1 petition regardless of which action you take.
3. EAD Processing Time is About 3.5 to 6 Months
I found a job in a lottery-free school, and the school promised to help me apply for H-1B, and I can apply for a green card after three years. My wife needs to apply for H-4. How long does it take for H-4 to apply for work authorization (EAD)?
Mr. Lee answers,
Under current law, a H-4 spouse is only eligible for an EAD under one of two situations – the H-1B principal has an approved I-140 petition or the H-1B is applying for an extension past the normally allowable six year time limit of H-1B status based on having filed either an employment visa petition (I-140) or labor certification application & 365 days have elapsed. I imagine that the first situation will likely occur before the latter. As your school will only apply for the green card after three years, the timing after that will depend upon how long a labor certification will take, or if the case is being done without labor certification, how long it will take for you to obtain the I-140 approval after three years. Following that, your spouse could then apply for the EAD and the further timing would depend upon the processing time of the relevant USCIS service center. Currently, such EADs are being processed anywhere from 3.5 – 6 months (current published processing times) dependent upon which service center is involved.
4. Priority Date Could not be Transferred to Spouse
My current situation is that my EB-1B has just been approved, but because EB-1 is not current, I have to wait for the priority to become current. The conservatively estimated time is about 1 to 2 years before I-485 can be submitted. I did not apply for EB-2. My teammate has an EB-2 with a 2019 PD. I would like to know if I can this link my EB-1 to his EB-2?
Mr. Lee answers,
There are certain situations in which priority dates are transferable from one case to another, but they invariably involve the same person. For example, if you had a 2019 EB-2 approval, you could have used it in support of your EB-1 I-140 petition to request the earlier priority date. However, even if you were married and your spouse had a 2019 priority date, that could not be transferred to your petition. Each petition must go its own way.
5. In Case of any Difficulty, Please Contact the Immigration Contact Center First
I hold a green card and have met the requirements for naturalization. After I asked for a rescheduled appointment for my first naturalization interview due to physical discomfort, I suddenly received a letter from the US Immigration Service a month ago, informing me that I did not show up for the interview and that I had not contacted the US Immigration Service. After that, I made several phone calls and online contacts with the USCIS, and they all said that the application for the repeated appointment was approved. Last week, I suddenly received a notice from the field office, saying that I did not go to the interview for no reason, so the naturalization application has been administratively closed. I’ve written to the local field office to explain the situation, but am still concerned. Excuse me, can I ask the local MP for help in this situation?
Mr. Lee answers,
Your example is the reason why we always encourage our clients to make it to USCIS appointments if at all possible. USCIS will occasionally do what it did in your situation. Yours is not a rare situation. That being said, probably the best way to communicate with USCIS is to bring up the matter with its Contact Center which can be reached telephonically at 1-800-375-5283 from 8 AM-8PM EST. Writing to the local field office is no longer the preferred way of reaching out to the agency. If you wish, you can reach out to your local member of Congress for assistance, but you may also wish to try the Contact Center first.