Q&A’s published on the World Journal Weekly on March 5, 2023 1. Change of Status from H-4 to F-1 Must has Spouse’s H-1 Documents 2. In Some Cases, Premium Processing Filing Fee Can be Waived 3. 3. Do not Rely on USCIS’ Unofficial Notices 4. Filing I-485 without J Supplementary Form is More Likely to be Rejected 5. STEM Graduates Can Stay in the United States for 3 Years with OPT

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.