Hi Substack Subscribers -

This is just a short post in appreciation of you all, including clients and colleagues (past and present) who have supported our firm.

This month (August 2025), our firm was ranked #253 in the Inc. 5000 ranking of fast-growing private businesses in the United States. This ranking put us as the 3rd fastest growing business on the list for businesses based in Minnesota and the 6th fastest growing law firm in the country, as measured by the 3 year qualifying period.

We continue to represent employers and individuals on U.S. visa strategies in a challenging policy and processing environment.

In an article by Tekendra Parmar that accompanied the list, I was quoted as saying “the system is fairly dysfunctional.” I stand by that!

I also stand by my quote that “when things are complicated, that’s when people want a good lawyer.”

There are many more topics about U.S. immigration law and policy to cover in this newsletter and the related podcast. I hope to devote more time to it in the coming days and months.

But again, thank you!

December 21, 2024: The incoming Trump Administration has proposed a Presidential Advisory Commission to be co-headed by Elon Musk and Vivek Ramaswamy called DOGE (“Department of Government Efficiency”).

Note that DOGE is a misnomer since it is not a “Department” of the government but ties into some kind of crypto currency, Dogecoin, which Musk has long promoted (perhaps as a joke?)

DOGE is supposed to focus on making recommendations to reduce expenses, remove regulations, and increase government efficiency.

It would appear that even though Trump is not yet back in office, as his inauguration will be on January 20, 2025, DOGE has already been in operation as this past week Vivek Ramaswamy and Elon Musk took to the social media platform formerly known as Twitter to oppose a bipartisan bill that would have extended government funding and provided disaster relief and spend money on other initiatives.

That initial bipartisan bill was defeated and a different bill was put forward at the last minute with more slimmed down expenditures, keeping the government open. President Biden signed that slimmed down bill earlier today. I think Musk and Ramaswamy consider their efforts a big win.

Earlier this month, on December 9, 2024, the Biden Administration got into the spirt of DOGE by eliminating the J-1 Skills List for several countries. You can find the official Federal Register announcement here.

This announcement means that people who currently have or PREVIOUSLY held J-1 visa status and are subject to a requirement to return home for 2 years pursuant to the Skills List are not required to obtain a No Objection based waiver.

The Skills List, as of December 9, 2024, has been eliminated for the following countries:

• Albania

• Algeria

• Argentina

• Armenia

• Bahrain

• Bangladesh

• Bolivia

• Brazil

• Chile

• China

• Colombia

• Congo

• Costa RIca

• Dominican Republic

• Gabon

• Georgia

• Guyana

• India

• Indonesia

• Kazahstan

• Laos

• Malaysia

• Mauritius

• Montenegro

• Namibia

• Oman

• Paraguay

• Peru

• Romania

• Saudi Arabia

• South Africa

• Sri Lanka

• Swaziland (Eswatini)

• Thailand

• Trinidad & Tobago

• Turkey

• UAE

• Uruguay.

Importantly, as stated above, this elimination of the Skills List benefits people currently on J-1 visas but also people from these countries who PREVIOUSLY HELD J-1 visa status and are still subject to the Skills List.

Equally important to note is that people who have come to the United States on J-1 visas and receive government funding (like Fulbright Scholars), or physicians who come for clinical residency or fellowship (graduate medical education or training) — they remain subject to the two year home residence requirement as those individuals were never eligible for a “No Objection” waiver.

Individuals who come on J-1 waivers and receive government funding or are involved in clinical residency/fellowship as physicians — they must return home to their home country for 2 years prior to obtaining either H-1B or green card status unless they can receive a special waiver through -

• Exceptional Hardship to a U.S. Citizen or Lawful Permanent Resident Spouse or Child; or

• Persecution; or

• Interested Government agency (IGA) - including the State Conrad program and DHHS waivers for physicians.

To read more about the Waiver of the Two-Year Home Residence requirement, check out the USCIS Policy Manual which provides lots of details here.

The J-1 Skills List and “No Objection” waiver for several years seemed to serve no purpose at all, other than to create a tedious administrative hurdle to be handled by J-1 visa holders from the above countries, or to “make work” for lawyers who sometimes advised individuals on these waivers.

While there are reasonable question marks as to what DOGE will be doing and whether Musk and Ramaswamy can be effective, there is no question that in probably every area where the federal government operates, it could be more efficient.

In the immigration realm, there are many things that could be eliminated to save people time and money and to save the resources of the government. The elimination of the Skills List will now save for workers at the U.S. Department of State who have plenty of other things they could be doing. For example: Let’s expand that domestic mail-in visa revalidation program!

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In the United States, employers can sponsor workers for temporary work visas (known as “nonimmigrant” visas), and also employers can sponsor workers for U.S. permanent resident status (green card status).

The green card sponsorship process is often very slow, taking years to complete - and in some situations - MANY years. It is a frustrating situation. And a person being sponsored by an employer for a green card does not necessarily have work authorization while the green card case is ‘in process.’ This is one of the great challenges, that is, getting someone work authorization NOW while they wait for a green card.

The temporary work visa process can potentially be faster, so employers will often seek to hire someone in a temporary work visa first and then transition that to green card status later.

[This ‘double-work’ situation basically helps no one, except the lawyers! So obviously, it’s awesome….]

One of the most common temporary work visas is the H-1B visa. It is called “H-1B” based on where it sits within the regulations. The different temporary work visas are discussed at the USCIS regulations at 8 CFR 214.2. So the H-1B visas are discussed at 8 CFR 214.2(h).

The U.S. Department of State discusses temporary work visas here.

H-1B visas are employer-sponsored visas that are available for “specialty occupations.” Roughly speaking, this means H-1B visas are available for people coming to fill jobs that require a Bachelor’s degree and who have qualifying education or equivalent qualifying work experience. There are actually tons of little rules and nuance to which jobs qualify for H-1B designation and which candidates are eligible. I could talk for hours about this.

But the classic jobs are accountant for someone with a Bachelor’s degree (or higher degree) in accounting, or mechanical engineer for someone with a Bachelor’s degree in Mechanical Engineering. (Just 2 random examples).

H-1B visas are specific to 3 things:

• Employer; and

• Job; and

• Location.

So if a person gets an H-1B at employer A, and then wants to work for employer B, then employer B needs to do an H-1B change of employer petition.

If a person is hired as a mechanical engineer and gets an H-1B as a mechanical engineer is promoted to engineering manager, then an H-1B amendment is needed.

If a person is hired to work in Minneapolis and gets an H-1B and then wants to work in Chicago, she needs an H-1B amendment to work in the new location.

All H-1B employers must attest to paying the “prevailing wage.” The specific rules around prevailing wages are also potentially very complicated but the general idea is that an employer should be paying a foreign worker a comparable wage to what U.S. workers make for doing the same kind of work in the same metro area.

A lot of the issues related to H-1B visas are complicated (and outside the scope of this overview), but perhaps the most important thing to know about H-1B visas is that they are generally limited. There are only a certain, limited number of H-1B visas available each year and the limit is known as the “H-1B cap.”

Because so many people want H-1B visas, the USCIS conducts a lottery every March to determine which cases they will process. The lottery is now conducted via an electronic registration system. Employers must register and list details of individuals they want to sponsor.

This week (January 29, 2024 week) - the USCIS announced various changes to the H-1B cap lottery process. Those changes were announced to hopefully prevent/reduce fraud in the lottery because in recent years there has been so much demand that there are lots of anecdotes of ‘cheating’.

The USCIS website discussing H-1Bs is here.

The USCIS website discussing the H-1B cap lottery is here.

Note well: Individuals do not self-petition for H-1Bs. Individuals should be sponsored by REAL employers with REAL job opportunities.

If an employer has identified a candidate for the H-1B cap lottery, now (early February) is the time to do preliminary due diligence to participate in the lottery next month in March.

Good luck!

This post is for foreign nationals who might be living in the United States in a temporary visa status or possibly waiting to immigrate to the United States and who are not familiar with the U.S. political system and the way we choose Presidents. Note that this post will sound very basic to someone who follows U.S. politics closely…

1. Presidents are Elected every 4 Years.

In the United States, we elect Presidents every 4 years. 2024 is a Presidential Election Year. The President is the only political office where all Americans get to vote on the same competing candidates. Otherwise the officials we choose are based on where we live.

President Biden, of course, is the current President, and his current term ends in January 2025.

A President and Vice President run as “a ticket.” President Biden’s Vice President is Kamala Harris and is part of the ticket again in 2024. In theory, a President could choose another Vice President for a second term, but that is exceedingly rare.

2. The United States has 2 Main Political Parties.

The United States has two main political parties: The Democratic Party and the Republican Party. The Republican Party is sometimes called the “Grand Old Party” and therefore sometimes you will see the abbreviation “GOP” to refer to the Republicans.

• Republicans often use an Elephant to symbolize their party and the Democrats use a Donkey.

• In recent years, the term “red states” refers to states controlled by Republicans and “blue states” are states controlled by Democrats and “purple states” or “swing states” are states that are closely divided. Often the race for President is decided by a limited number of swing states. This year, in 2024, the 6 swing states are often listed as Arizona, Nevada, Michigan, Wisconsin, Pennsylvania, and Georgia (although there may be other states that are close).

There are a variety of other smaller political parties but the Democrats and the Republicans are the two main parties. Apart from a handful of independents, the Congress is filled with Republicans and Democrats.

The current Congress is technically the 118th United States Congress. This Congress will end on January 3, 2025. The Congress is made up of two separate Houses - the U.S. Senate with 2 senators from each of the 50 states and 435 Representatives in the U.S. House of Representatives.

• The 118th Congress is extremely closely divided between Democrats and Republicans.

• The Democrats control the U.S. Senate with 48 Democrats and 3 independents who vote with Democrats and the Republicans control the U.S. House with a very narrow margin in the majority.

3. Primaries and Caucuses.

Each major political party uses a system of primaries and caucuses to determine who will be the nominee for their party to go into the General Election.

• A Primary is just an election, but only among candidates of the same party. If people are voting in a primary, they are going to vote in the traditional way in a polling place and with ballots.

• A Caucus is much weirder and involves going to various places based on geography (including people’s homes!) and the process is more ‘public’ but it is again limited to choosing among one party’s candidates. The most famous Caucus state is Iowa, which has the first Caucus each Presidential Election year. The Iowa Caucus is tonight! This article tries to explain the Iowa Caucus.

• Some states have both caucuses and primaries, in an apparent effort to confuse everyone. Those states tend to be irrelevant (okay, maybe that’s more my own commentary coming out!)

This year, in 2024, the nominee for President for the Democratic Party will be President Biden, as is generally the case for a sitting President. Despite the nominee being known, there is still a series of primaries and caucuses to choose President Biden. There is only a token challenge to his nomination.

The Republicans initially had several candidates seeking the nomination of the Republican Party to go against President Biden but as of the time of this post (January 15, 2024), the leading candidates for the Republicans are former President Trump, Florida Governor Ron DeSantis, and former South Carolina Governor and Ambassador to the United Nations Nikki Haley.

Traditionally the first caucus state every 4 years was Iowa and the first primary state is New Hampshire, and the Republicans will keep that traditional structure in 2024 although the Democrats have, for various reasons, revised their order of caucuses and primaries. The first 3 states relevant to the Republican process are:

• January 15 = Iowa Caucus.

• January 23 = New Hampshire Primary.

• February 6 = Nevada (not traditionally seen as a key state).

• February 24 = South Carolina.

What is happening through the caucus and primary states is that the candidates are winning votes and collecting ‘delegates’ for the National Convention which will be in the summer. And it is actually the delegates at the National Conventions who nominate the person to serve as President (and the nominee chooses the Vice President).

Note that there are a lot of highly technical rules along the way and this is just a primer to get you the general idea!

4. The Convention.

In the summer preceding a President Election in November, each major political party will have a convention and that convention is when the official nominee is chosen but almost always the nominee is identified much earlier. But both parties will generally have their conventions in summer and then face-off for the “general election” in the fall.

• The Republican Convention will be in July 2024 in Milwaukee, Wisconsin.

• The Democratic Convention will be in August 2024 in Chicago, Illinois.

5. The “General Election” Campaign.

The General Election campaign is considered the period of time after the conventions of the major political parties up to the election in the first week of November. This year Election Day is November 5, 2024.

In the United States, elections are run by states and each state has different procedures for how to register to vote and how to actually vote. The process can differ widely in different states.

6. The Election and the Electoral College.

The process by which the President is elected is surprisingly complicated and in recent years that complexity has come under scrutiny.

The United States does total all the votes, but the person who becomes President is not always the person with the most votes. This is because of the Electoral College. The Electoral College is a way of allocating power to the states and so each state has a certain number of electoral votes based on the number of Congressional districts which is based on the state’s population from the last Census. To win the Presidency, you have to win a majority of electoral college votes.

If you are interested in how the electoral college votes work out, consider making your own predictions on one of various online maps, like this one.

7. The Lame Duck Period and a new President sworn-in in January 2025.

After the Election Day in November, there is a period of time known as the “lame duck period” when the current President remains in office before a new one is sworn-in (or the existing one is sworn in again). The U.S. Constitution says the new President shall be sworn-in (inaugurated) on January 20 every 4 years, except if January 20 is a Sunday.

The next inauguration day is January 20, 2025.

I realize this post was kind of dull but I feel like there should be something ‘out there’ and accessible to foreign nationals who might want a general understanding of this process. U.S. immigration law and policy could change a lot depending on what happens in the election this year.

This is a quick post to discuss a situation that sometimes occurs for people in H-1B status. But first, some background:

• H-1B workers are limited to 6 consecutive years in H-1B status. This is cumulative of employers, so if you spend 4 years at Employer A, then you go to Employer B, you are only eligible for 2 more years at Employer B, for a total of 6 years.

• Many H-1B employees need to be sponsored by their employer for a green card. In fact, employer sponsorship is the most common way, by far, for H-1B workers to get a green card. Self-sponsorship, while something great to consider, is simply not applicable to lots of people.

• Employer green card sponsorship generally requires 3 stages, with stage 1 being PERM labor certification.

• PERM labor certification requires processing with the U.S. Department of Labor (DOL). It requires getting a Form 9141 prevailing wage determination (which can easily take 6 months) and also filing and getting approved a 9089 PERM application form. 9089 processing can take 10+ months. So the PERM process can easily take 16 months just in DOL processing (9141 + 9089), and there are also various other steps involved which can easily take 2-3 additional months. Note that neither 9141 prevailing wage request nor 9089 PERM application processing are eligible for premium processing. It is the slow boat, or no boat!

• Because the PERM process is so slow these days (with no end in sight) and because H-1B workers are limited to 6 years of H-1B time, many H-1B workers are running out of time. The problem has become acute in 2022 and 2023 as the PERM processing times have kept getting slower.

• Importantly, there are two ways to qualify for H-1B extensions beyond 6 years. Option (i) is to get an approved PERM and approved I-140 and show that the priority date is not current. Then you are eligible for 3 years of additional H-1B time. Option (ii) for an H-1B extension beyond 6 years is that show that the PERM application was filed and has been pending at least 366 days (1 year plus 1 day), then you are eligible for an H-1B extension for 12 months beyond the 6 year limit.

• Sadly, these extension options are NOT available for L-1 visa holders. A lot of L-1 visa holders face issues because of slow processing times at DOL and the expansion of cut-off dates to more categories and nationalities, but that’s a separate discussion for a subsequent post!

• For various reasons, it may not be possible to qualify for Option (i) or Option (ii) and a person in H-1B status may run out of H-1B time. It is increasingly common to see H-1B workers running out of time EVEN THOUGH their employer is sponsoring them for PERM.

• One possible way to stay in the United States if this occurs is for the H-1B worker to file an I-539 application to change status from H-1B to B-2 visitor and wait in the United States until you qualify for an H-1B extension using either Option (i) or (ii) - depending which option becomes available sooner.

• Note that you cannot work in the United States if your H-1B time runs out and you file an I-539 application to change to B-2 visa status, so changing to B-2 visa status it not a super great option; but it does allow you to stay in the United States if necessary. And your employer can file for an H-1B extension for you beyond 6 years using either Option (i) or (ii).

One thing to keep in mind is that I-539 processing is ALSO slow so if you pursue this option to change from H-1B to B-2, you might be just waiting in the United States with an I-539 application pending (and not approved) and then while waiting for your I-539, you become eligible for an H-1B extension using either Option (i) or (ii). If that happens, then it is possible to have your employer proceed on the H-1B extension and document your change to B-2 status with the I-539 receipt. We have been successful on this approach in 3 instances where in all 3 instances the I-539 application was still pending when we hoped to extend the H-1B. In all 3 instances it worked and so I mention the I-539 as a possible strategy (a ‘band-aid’) to bridge the gap in the increasingly common situation where an H-1B worker runs out of time while the PERM application is pending.

Perhaps you know someone who can benefit from this approach?

If you are trying to immigrate to the United States through Employment-Based (EB) immigration, you know it is a tricky maze.

You might have finally gotten to the I-485 final stage process. And now that you have made it this far, and you feel like your life in the United States is relatively stable - well now you might think about getting married.

But it is important to know in this era of Visa Bulletin cut-off dates ‘falling backwards’ that if you filed your EB I-485 application and your priority date was current at the time you filed your I-485, then cut-off dates moved so your priority date is no longer current — If that happens, and then if you get married to a foreign national who also needs a green card, then she will not be able to file her I-485 application until your priority date is current again.

If you have an H-1B or L-1 visa status, then you should be able to get your new spouse an H-4 or L-2 visa; but your new spouse will not be able to file her I-485 application until your priority date is current again.

Argh!

This means that if you filed your EB I-485 application and you were hoping to stop maintaining your H-1B visa status, you might need to maintain your H-1B visa status in order to ensure your spouse has the ability to come to the United States as an H-4. If you don’t maintain your temporary visa status and instead you use advance parole to travel abroad and get married abroad, then your new spouse may not be able to come to the United States except through immigrant visa processing.

There is a way where one spouse can adjust status through the I-485 process in the United States while the other spouse can seek an immigrant visa from abroad. This is sometimes referred to as “following-to-join” but that option ends up being a lot more complicated and frustrating than you would think.

I hope to provide more detail on “follow-to-join” in a separate post — but this short post is simply to flag the issue that a spouse ‘acquired later’ is only able to file her I-485 application if her priority date is current at the time she wants to file, even if your priority date was current in the past and you filed your I-485.

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H-1B visas are temporary work visas for professionals. H-1B visas are visas sponsored by employers or in some limited cases agents. You cannot self-petition. H-1B visas are the most common work visa for international students seeking to stay in the United States after graduation of working using practical training (OPT and/or STEM OPT), but H-1B visas are also sought by candidates who have not studied at all in the United States.

Employers are permitted to register candidates for the H-1B cap lottery through March 17, 2023.

Let’s review the brief history of the electronic registration system to consider the odds of being chosen.

First, recall that the H-1B cap includes 65,000 new H-1B approvals for the “general cap” plus an additional 20,000 new H-1B approvals for candidates who qualify under the U.S. Master’s cap.

March 2020 was the first H-1B cap lottery run through the electronic registration system. So there have been 3 years of the electronic lottery system:

• March 2020 = About 274,000 registrations.

  • In the first lottery drawing in March 2020, there were 106,100 cases selected.

  • In the second lottery drawing in August 2020, there were an additional 18,315 cases selected.

• March 2021 = About 308,000 registrations.

  • In the first lottery drawing in March 2021, there were 87,500 cases selected.

  • In the second lottery drawing in July 2021, there were 27,717 cases selected.

  • In the third lottery drawing in November 2021, there were 16,753 cases selected.

• March 2022 = About 483,000 registrations.

  • In the first (and only) lottery selection, there were 127,600 cases selected.

At this point, on March 10, 2023, there are LOTS of unknowns -

• We don’t know how many people will register this year.

• We don’t know how many will be selected in the initial selection process in March.

• We also don’t know whether there will be a second lottery selection, although that seems unlikely as the calendar year 2020 and 2021 drawings were greatly impacted by the pandemic and the dynamic nature of staffing during those years.

Keep in mind: If there is a second lottery selection, there is nothing you have to do. If you register in March, then you will be automatically considered for all subsequent selection periods.

Given the low odds of being chosen, everyone seeking an H-1B in the H-1B cap lottery should be researching alternatives now.

We are living in a golden age for EB-2 NIW. Who knows how long it will last. But cases are getting approved quickly by USCIS (even without premium processing) and the adjudication standards are eminently reasonable.

This is a short case study of an EB-2 Indian who already had a PERM-based I-140 approved (in EB3), who pursued a self-petition I-140 in the EB-2 NIW category.

His new self-petition approval will give him various benefits (but alas, it is true he is still in the long wait for EB-2 India).

Background Facts/Profile:

• Indian-born H-1B chemist who earned a Master’s degree in the US. Married with a spouse with H-4 EAD.

• Approved I-140 in the EB-3 category. Priority date not current.

• 2 research-based publications (one very old), no first-authorship, 20 citations per Google Scholar.

• Working in R&D at a private sector company.

  ---

Timing:

• July 6, 2022: Client signed retainer agreement to work with Webber Law.

• Dec 21, 2022: I-140 petition filed. Evidence included 3 support letters plus a self-petitioner support letter outlining eligibility per Matter of Dhanasar.

• February 16, 2023: EB-2 NIW I-140 petition approved without premium processing.

Benefits:

• Now he has a self-petition EB-2 NIW approval. This means the client now has the benefit of being able to change jobs, location, and/or employer, and he will not require a new I-140 filed for him. He is currently pursuing a M.B.A. and is interested in management and business development opportunities. Even if he stays at the same employer, he would arguably need a new PERM approval for a new promotion which can take a long time and is subject to unpredictability due to this weird economy and labor market. He can now pursue his career at the same company or at a different company or even get involved in a start-up without worrying that he needs a new PERM and I-140.

• So many Indians are told that they really should not change jobs or risk having to do a new green card process. He has taken that issue out of the equation now.

• This client can even go abroad and know that he is exempt from the H-1B cap if he chooses to return to the United States during the long wait for his now EB-2 priority date to be current.

• It is a long-shot, but this client can keep building his profile, perhaps with a managerial and business development angle, and stretch for EB-1A in the future.

CONCLUDING THOUGHTS

The “per-country” limits that create absurd backlogs for green cards for people born in India should end. I support the end of these per-country limits. But very likely the only change possible will require an act of Congress. And Congress does not seem inclined to act.

In the meantime, we live in real life and in real time. And Indian H-1B workers can assess the benefits of EB-2 NIW and whether having a self-petition I-140 approved and attached to them personally provides benefits ‘worth the cost and hassle’ to seek the EB-2 NIW approval.

In the current era of unpredictable layoffs and extremely slow PERM processing, having something attached to you personally provides peace of mind to people even if the wait times for a green card are WAY TOO LONG

.

The following is a timeline for a successful EB-2 NIW self-petition I-140 handled by our firm:

• July 2022 = Retained by client;

• Nov 7, 2022 = Filed I-140 petition for Ph.D. bioinformatics professional. The case was slightly delayed as we were waiting on another support letter but we decided to go forward with just 2 support letters, plus a detailed self-petitioner cover letter. Petitioner had done peer-reviewed research with 90+ citations to his articles, plus other “traditional metrics” which are favorable for EB-2 NIW. Self-petitioner client was (and is) working at a top-rated hospital system in F-1 OPT.

• November 25, 2022 = Filed I-485/I-765/I-131 applications with I-140 receipt.

• January 19, 2023 = EB2 NIW I-140 petition approved with no RFE. Case was approved by the Nebraska Service Center. That is a total of 73 days from “received date” to “approval.”

Traditionally when USCIS introduces premium processing to a new category, or re-introduces it after a break, the agency will clear out the backlog of pending cases in that category as much as possible. So the fast processing time here may have simply benefited from when it was filed and when premium processing was introduced. Plus it was a strong case and should have been approved (but that often does not matter to the processing time!).

The open question now is whether EB-2 NIW petitions will continue to be processed quickly via non-premium processing now that premium processing is available. I suspect non-premium processing cases will be VERY SLOW.

Regardless, we have a happy camper client!

This short post will attempt to explain something that is sometimes misunderstood about U.S. immigration processing.

When you want an immigration benefit - most commonly a green card - you have to consider both the USCIS, or US Department of Labor (DOL), or US Department of State (DOS) processing times, which are separate and distinct from any Visa Bulletin backlog.

The processing time is simply how long it takes a given agency to do its job. If you file a case with USCIS, if you file via premium processing, the case might be reviewed quickly in less than 3 weeks (for certain types of premium processing), or 45 days for EB-2 NIW I-140s or EB1(3) intracompany transferee manager I-140s.

If you file something via regular, non-premium processing, you are subject to potentially longer, undefined processing times by the relevant agency. But regardless of whether the filing is done via premium processing or regular processing, none of this relates to the Visa Bulletin which is totally independent to how long it may take to get the benefit you want.

A couple examples:

• An I-130 petition for a sibling might take 2 years to be approved by USCIS. So the 2 years is the PROCESSING TIME. But totally separate from the 2 years at USCIS, there are Visa Bulletin cut-off dates that will implicate how long it will take for your sibling to get a green card.

• In the EB (Employment-Based) context, an I-140 petition in the EB2 NIW category might take 6 months to be approved via regular, non-premium processing, and that is the USCIS PROCESSING TIME. But separate from the processing time, there is also the Visa Bulletin backlogs. Getting the I-140 approved does NOTHING to implicate the Visa Bulletin backlogs.

  • However, with that said, even if your priority date is not current per the Visa Bulletin, there may still be benefits to getting an I-140 approved quicker through premium processing.

  • If an I-140 is approved quicker, then if you are married and your spouse has H-4 visa status, your spouse can get an H-4 EAD work permit even if your priority date is not current. An H-4 EAD work permit is available for an H-4 spouse where the H-1B “principal” is the beneficiary of an approved I-140. Traditionally H-4 EADs were used almost exclusively by Indian-born H-4 spouses but with the Visa Bulletin cut-off dates now applying to all nationalities, there will be more nationalities considering the H-4 EAD.

  • If you are running out of H-1B time and you want clarity that you are eligible for H-1B time beyond 6 years, having an approved I-140 quicker will potentially help with that.

My point in this short post is not to say that premium processing is “worth it” or “not worth it.” I truly believe this calculation must be an individualized, case-specific consideration (although if your employer will pay - then yes, go for it!)

You have to consider a variety of factors including your own budget and the ‘value’ of getting things done quicker. I will say that everything seems to get slower and more frustrating so as a general rule I see the appeal in premium processing but given the relatively steep filing fee, it is worth assessing the cost versus benefit.

My point is that if you are waiting for an immigration benefit, you have to consider BOTH the agency processing time and separately any backlogs or waitlists that apply as a result of cut-off dates on the Visa Bulletin.

The following are topics/issues all non-citizens in the United States should periodically consider:

• Address Changes;

• Job Changes;

• International Travel;

• Key Expirations;

• Max-Out and Age-Out.

Address Changes

Basically all non-citizens in the United States are supposed to report address changes to USCIS. This includes green card holders. The address change form is AR-11, found here.

• NOTE: If you have something pending at USCIS, you will want to specifically call that out on the AR-11.

A U.S. citizen who has submitted an I-864 affidavit of support to sponsor an immigrant is also supposed to submit address changes using Form I-864, found here.

If you are awaiting processing at the U.S. Department of State’s National Visa Center (“NVC”), keeping your email address up-to-date is extremely important. Here is what NVC says:

How can I update my email address?

It is very important that you let NVC know if your email address changes, since that is our primary way of contacting you. It is easy to update your email address on CEAC. On the top-right area of your summary page, you will see a box that says “Email addresses.” Simply click on the “edit” button and you’ll be taken to a screen where you can delete, add, or change email addresses for you (the visa applicant), your petitioner, and any third-party agent you want to receive notifications about your case. However, at this time you cannot update your attorney’s information online. Attorneys need to contact NVC by using our Public Inquiry Form if there is a change to their contact information.

How do I update my mailing address or phone number?

To update the mailing address or phone number of anyone associated with a case, please contact NVC using our Public Inquiry Form. Remember that whenever you contact NVC please provide your case number, the name of the petitioner, and the name and date of birth of the principal visa applicant.

Source: CEAC FAQs

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For non-citizens, it is important to remember that USCIS has a special prohibitory order with the U.S. Postal Service so if you tell the U.S. Post Office that you move, mail from USCIS will not necessarily be forwarded to your new address.

If you tell the Post Office of your move (which is a good idea), you can get all your other mail but you won’t get your USCIS mail without completing Form AR-11.

And even if you do complete Form AR-11, there are notorious gaps due to manual updates by USCIS so it is a best practice to THINK carefully about address changes. Even if you are planning to move in the future, if you are filing something with USCIS now, you should think about where the approval notice will go. This is particularly important for people who are filing something that is time-sensitive like an EAD work permit application or travel permit application. Tracking down something that is lost in the mail or getting USCIS to re-issue something lost in the mail can easily be the most frustrating aspect of U.S. immigration law.

Often university international student offices provide excellent advice related to address changes and avoiding losing things in the mail.

Job Changes

Many people have a visa status that is tied to their job. H-1B visa holders, for example, are approved for H-1B status based on (i) a specific employer, and (ii) a specific job, and (iii) working in a specific location. The H-1B petition approval will be based on an underlying Labor Condition Application (LCA) which attests to a prevailing wage. Prevailing wages are tied to geographic (metro) areas.

An H-1B worker who changes worksites including working at home or changing a home office address may have to post a new LCA (or the existing LCA), or an H-1B amendment may have to be filed. These things should be analyzed case-by-case and in good detail.

F-1 students using CPT/OPT/STEM OPT may end up changing jobs and will need to update their college/university as to the job changes. STEM OPT is only available to employers who participate in E-Verify.

Gaps in employment, that is, long periods of unemployment, can implicate F-1 status in some circumstances.

Anyone being sponsored for a green card through employment may have their green card process negatively impacted by a job change.

Be sure to analyze job changes closely as to impact on a temporary visa status as well as a permanent resident (green card) process.

International Travel

It is always easy to leave the United States - the issues arise on whether you can come back!

U.S. law gives you more protection when you are in the United States and much less protection when you are outside the United States.

Any time a person is traveling, I want to know where they are going and whether they have permission to enter all the countries along the way, and what documentation they will present when they return to the United States.

• There are obviously some situations where international travel will require a visit to a U.S. consulate for a new visa.

• There are some situations where international travel might negatively impact an existing pending matter at USCIS.

• There are some situations where international travel and extended time abroad could result in loss of eligibility for naturalization and/or eligibility to retain U.S. permanent residence.

All these things should be considered IN ADVANCE of actually traveling.

Key Expirations

Every foreign national, if at all possible, should maintain (i) a valid passport and (ii) a valid I-94 admission record.

It is not necessary to maintain a (iii) travel visa while physically present in the United States. A valid travel visa is only needed to travel to the United States so individuals who have no plan to leave the United States need not maintain a valid visa.

• I-94 records are available online here.

• More information about I-94s can be found online here.

Max-Out and Age-Out.

Depending on your visa status, there may be a maximum amount of time you can stay in the United States. For example:

• People in L-1B visa status are limited to 5 years.

• People in L-1A visa status are limited to 7 years.

• People in H-1B status are limited to 6 years barring an approved I-140.

Calculating your “max out” date is an important thing to do when you are in one of these time-limited visa categories. You should understand your max out date and whether you are eligible for any “recapture.”

ALSO: Unmarried children under age 21 are eligible for derivative dependent visas. They are also eligible to green cards through their parents. But sometimes the green card process is very slow. So planning ahead is critical.

CONCLUDING THOUGHTS

In general foreign nationals (non-US citizens) face a variety of headwinds to live and work in the United States legally. It pays to be organized! I hope the photo above is NOT your desk.

I strongly recommend that you take time each year (or perhaps more often than each year) to organize your and your family’s records and make sure you know when things expire.

• Be cautious on developments in your life related to changes in where you live and where you work.

• Educate yourself on options and how long things take. In general things take much longer than you could imagine.

And when in doubt, ask questions.

Background Facts:

• Canadian (not born in India or China) with Canadian Master’s degree (not Ph.D.) gets job at U.S. university and university sponsors her for TN visa status as a Chemist. She processes her TN at the U.S./Canada border very easily and efficiently, with the university’s in-house counsel providing her with the requisite TN support letter.

• She has several years of work experience in Canada and has several peer-reviewed publications.

• Her position is not eligible for institutional sponsorship by the university where she works.

Case Timing:

• March 2022: She hired Webber Law.

• July 2022: Her EB-2 NIW I-140 self-petition is filed. The petition filing includes her cover letter plus 3 support letters and documentation of her publications and other accomplishments in the field.

• Jan 2023: Her EB-2 NIW I-140 petition approved without RFE.

• Separately -

  • Aug 2022: She filed her I-485/I-765/I-131 applications.

  • Dec 2022: Her I-765 and I-131 applications were approved and she received her EADAP work/travel card.

  • Her I-485 application remains pending as of the time of this post but we are seeing relatively fast processing times and we are hopeful her I-485 application will be approved without interview in February or March.

• To be clear, she was ‘landlocked’ in the US from August 2022 when her I-485 application was filed until December 2022 when she got her EADAP card.

In some ways this was a “classic” EB-2 NIW case for a research-oriented professional but it is a reminder that TN to green card is a viable option.

• For people not born in India or China, it can all happen pretty fast (although getting longer per recent Visa Bulletin cut-off dates).

• But even Canadian citizens born in India or China can seek green cards from TN status.

  • This strategy is also available for Mexican citizens on TN, Australians on E-3, or citizens of Chile/Singapore on H-1B1.

To read more about EB-2 NIW as a route to a green card, please consider reviewing my Primer. You can also find information about EB-2 NIW directly on the website of USCIS, here.

If you go to the trouble of having a Substack newsletter, I guess one positive is that it can be Festivus every day - you can air your grievances whenever you want. This post is akin to the airing of a grievance of mine, a pet peeve.

The issue is simple:

• On Form I-140, in Part 1, regarding questions 1 and 2 -

  • If you are an individual petitioner, you are supposed to list your name; but

  • If you are an organization (corporate) petitioner, you are supposed to list the company name.

• The signatory for an organization is NOT listed in questions 1a and 1b of Part 1 of Form I-140.

Example: If you are representing Vandelay Industries and the signatory is George Costanza, then you list “Vandelay Industries” as the answer to question 2 for Part 1, but you do NOT list “George Costanza”. You would only list George if he were self-petitioning.

If you do list the signatory in questions 1a and 1b, then the I-140 receipt and particularly the I-140 approval notice will list the signatory’s name.

So if Vandelay Industries is filing a PERM-based I-140 for Babu Bhatt, if you list George Costanza as the answers to questions 1a and 1b, then you will get an I-140 approval indicating that George is the petitioner; but he is not the petitioner, he is the signatory.

Bottom line: Read the forms very carefully because small things matter in immigration law!

This short post provides information about “new” Form I-485 (required for filings on or after December 23, 2022).

The form was updated to reflect new guidance on the concept of Public Charge. Essentially the concept of Public Charge is the concept in U.S. immigration law that any person getting a green card should be able to support himself/herself, or should have a financial sponsor able to support him or her.

There are many potential details about the concept of Public Charge, and this post is not meant to be comprehensive in any way. For most EB (Employment-Based) immigrants, there is no issue of Public Charge but the new Form I-485 does request disclosure of information that was not previously requested.

If you want to read more about the formal Public Charge guidance, you can find official USCIS guidance here.

The new questions on Form I-485 related to Public Charge start on Page 13 of the form. They are within Part 8, Questions 61-68d:

You can review new Form I-485 in its entirety here.

I anticipate that many EB immigrants will get bogged down on valuing their assets and liabilities and documenting their education and qualifications. I certainly don’t think you need metaphysical precision on these questions.

If you are hoping to file your I-485 application soon, or if you work with EB immigrants in the preparing and filing of I-485 applications, you should map out your plan in terms of how you are answering these questions and what evidence you are going to use to supplement your answers.

Welcome to 2023 - Annus Horribilis for U.S. Immigration Law!

Background Facts:

• European with Master’s degree in Biology gets job in clinical genomics lab at H-1B cap-exempt hospital.

• Hospital handles H-1B in-house in 2020 and European moves to the US.

• Her lab is prolific, so she is listed as co-author on multiple publications and garners a citation count of 45 per Google Scholar after 2 years in the lab.

Timeline:

• May 2, 2022: Signs retainer agreement with Webber Law.

• August 16, 2022: EB-2 NIW I-140 petition filed. Case filing includes 3 support letters plus a self-petitioner support letter, plus documentation of publications and citations and background information about her subject matter area of genomics.

• December 19, 2022: I-140 approved without RFE.

• Separately -

  • September 2022: I-485/I-765/I-131 applications filed.

  • October 2022: Biometrics completed.

  • December 2022: We are anticipating the EADAP work/travel documents to be approved in January 2023 and the self-petitioner can then pivot to a job opportunity at a higher paying private sector life sciences company in a different part of the country where she wants to live.

This is the way it is done!

Europeans being smart about U.S. immigration law - using the benefits of H-1B cap exemption to get into the U.S. market on a temporary work visa, building an EB-2 NIW profile, and then proceeding to a self-petition green card.

From the time we were retained (May 2022) to the time the I-140 was approved (Dec 2022) — it was faster than a 9141 prevailing wage determination through the sloth-like U.S. Department of Labor these days.

And if you are waiting on PERM, you need to wait on the 9141, then the recruitment campaign, then the 9089, and then finally the I-140 with an employer sponsor.

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The January 2023 Visa Bulletin has been issued.

For those not familiar, the Visa Bulletin provides the public with information on who is eligible to process for a green card through various U.S. immigration programs, including Family-Based (FB) and Employment-Based (EB) immigration.

Each month the Visa Bulletin provides two separate charts for FB and two separate charts for EB categories, and then separately and subsequently USCIS - a different agency with its own leadership and priorities - USCIS will issue its own guidance to say which Visa Bulletin chart USCIS will honor for a given month, for purposes of I-485 final stage green card processing.

The graphic above is my creation and shows the cut-off dates over time for key categories, going back to October 2020 - the first month of fiscal year 2021.

Whereas most FB immigrants complete the immigration process through a U.S. consulate, most EB immigrants are already in the United States in another temporary visa status and seek to complete the immigration process through the I-485 adjustment of status application. Thus, understanding ‘which chart’ USCIS will use is particularly important for foreign nationals seeking to file their I-485 applications. The USCIS filing charts can be found here.

• For January 2023, USCIS has indicated it will honor “Chart B” which is the more favorable chart for purposes of EB immigration.

• The January 2023 Visa Bulletin shows no change versus the December 2022 Visa Bulletin in the cut-off dates for EB-2 India, EB-3 India, or EB-2 Rest of World (ROW).

• The January 2023 Visa Bulletin does create a new a cut-off date for EB-1 India/China.

Overall, the January 2023 Visa Bulletin is not good for those trying to immigrate. But ironically, the cut-off dates appear to be the result of USCIS being MORE efficient at processing pending EB I-485 applications.

This post attempts to explain the January 2023 Visa Bulletin and anticipate how dates will move (or not move) in the coming months.

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Background on the Visa Bulletin

• If you are new to U.S. immigration law, you might consider this overview I have previously written which is a high level summary of U.S. immigration law, in one post. It is obviously not comprehensive but hopefully provides a person new to this world some idea of the issues and concepts involved.

• If you are not familiar with the Visa Bulletin, you might consider this primer which covers some background information about the Visa Bulletin in more detail.

Overall, my view is that the most important concept to understand in U.S. immigration law is that there is limited supply (of green cards) and excessive demand (of people seeking green cards). So the whole system is best understood as a system where supply and demand are completely out of sync, and complications emerge as a result of that fundamental fact.

U.S. law limits how many people can immigrate to the United States each fiscal year, based on a relatively convoluted system of categories (also known as “preferences”) along with nationality. So, ‘categories’ and ‘nationality’ are two important variables in determining who gets a green card.

Note also that there is also a fundamental divide on whether you are obtaining your green card based on sponsorship from a family member, or sponsorship through an employer (or self-sponsorship through one of the very limited employment-based categories).

Because there is excess demand, and limited supply, the U.S. Department of State issues a Visa Bulletin each month and uses “cut-off dates” to control the number of green card cases that can be filed and approved.

• The goal of the U.S. Department of State each fiscal year is to use up all the available EB immigrant visas, but no more than what is available.

• Because it has limited ‘visibility’ on the number of cases ‘out there’ and also limited visibility of how quickly the U.S. Department of State and USCIS approve pending cases, there is a certain disjointed and inefficient movement of the cut-off dates over the course of a fiscal year.

• For those familiar with the Federal Reserve and the movement of interest rates by the Federal Reserve, the Visa Bulletin is somewhat akin in the sense that the officials at the U.S. Department of State are like the Federal Reserve Chair - they are ‘data dependent’ and they try to move the cut-off dates like the Fed Chair tries to move interest rates in accordance with data they receive.

  • The Federal Reserve is supposed to keep inflation and unemployment low.

  • The U.S. Department of State is supposed to use all the immigrant visa numbers in a given year - but not one more, or one less.

The U.S. government’s fiscal year starts on October 1, so we are currently in Fiscal Year 2023, which will end on September 30, 2023.

January 2023 marks the first month of the second quarter of FY2023. As noted above, this post is about the January 2023 Visa Bulletin - the most recent Visa Bulletin issued as of the time of this writing.

Ongoing Frustration for EB2/EB3 India

If you were born in India, you may already be aware that the EB immigration system is very slow for you. This is because U.S. law has created “per country” limits and those limits greatly impact people born in India.

It is worth noting here that there are two special provisions that are not always understood:

• First: Country of birth is what controls the backlogs. So if you were born in UAE but you were a citizen of India at birth, you are permitted to use the country quota of UAE (which is not necessarily backlogged).

• Second: If your spouse was born in another country other than India, you are permitted to use your spouse’s country of birth. This is known as “cross-chargeability.”

Two other things to know:

• Country of citizenship does not help you so even if you were born in India but became a citizen of Canada, you are subject to the slow India quota system.

• Also, cross-chargeability does not apply to children. If your children were born in another country, you cannot use a child’s country of birth - only a spouse’s country of birth is available for cross-chargeability.

The backlogs that have existed for people born in India have existed for many years and they are extremely frustrating. I continue to support and have for 20+ years have supported the end of the per-country quotas. Alas, I am not King and the frustrating country quotas persist, and get worse.

The “per country quotas” keep people born in India from filing final stage I-485 applications although their employers are permitted to file PERM labor certification applications and I-140 immigrant visa petitions at any time.

• The country quotas never restrict when an employer can file a PERM application or when an employer can file an I-140 petition.

• Further, a self-petition under EB1A or EB2 NIW can be filed at any time.

In October 2020, in the first month of FY2021, there was a dramatic jump forward in the cut-off dates for EB3 India. This led to a huge number of EB I-485 filings by people who had been waiting many years. From October 2020, to September 2022, USCIS tried to approve a record number of EB I-485 applications. In some ways the agency succeeded, in other ways the agency failed. There were a record number of EB green cards available during those two fiscal years as a result of some technical issues in the law tied to the pandemic and the closure of U.S. consulates during the pandemic.

There is no question that a record number of Indians were able to file EB I-485 applications in fall 2020; the main frustration relates to the number of EB I-485 applications approved after the surge in filings.

In October 2022, at the start of FY2023, I had hoped that things would continue to progress for EB2 and EB3 Indians, but unfortunately things have stalled and there has been basically no movement for EB2 and EB3 Indians this fiscal year. And barring a change in the law, it may be difficult to see forward movement in cut-off dates for EB2 or EB3 India any time soon.

• EB2 and EB3 Indians with I-485 applications pending will likely have them pending for a long time.

• EB2 and EB3 Indians who have not been able to file I-485 applications will not likely be able to file them this fiscal year unless they can somehow upgrade to a category that is current.

There is, without question, huge interest in EB-1 among Indian-born H-1B workers, but the category remains very strict and there is increasing anecdotal evidence that a surge in filings has made adjudicators basically numb.

Month 2 for a Cut-Off Date for EB2 ROW (Rest of World)

In December 2022, and continuing for January 2023, a cut-off date was introduced for EB-2 Rest of World (ROW).

Traditionally for EB immigrants, there are cut-off dates for EB2 and EB3 India and China and occasionally EB3 Philippines (mainly as a result of the very active international nurse programs); but it is NOT common for cut-off dates to exist for other nationalities.

Thus, the emergence of cut-off dates for EB-2 ROW in December 2022 was somewhat of a surprise and I think there are probably many people in the United States and born in countries other than India and China who do not realize these cut-off dates have arrived and what they mean. Indian and Chinese-born immigrants have spent years understanding and incorporating these backlogs into their immigration plans. Immigrants from Europe and Latin America and Canada are only now waking up to what cut-off dates will mean to their immigration plans.

The gif posted above is written in shorthand: “F-1 ROW to GC via EB2 NIW” is essentially an abbreviation for:

“F-1 students from “Rest of World” (not India/China) who are seeking a GC (Green Card) via EB-2 NIW (Employment-Based 2nd Preference National Interest Waiver).”

EB-2 NIW has become, for various reasons, an attractive route for green card processing for F-1 students not born in India or China particularly if they have pursued a STEM-based Master’s degree or Doctorate. And in fact it could be precisely because this immigration route is more well-known and attractive that there is now a backlog in that category.

What this means is that if you are a F-1 student from “Rest of World” - you need to be pro-active and consider moving ahead now, before the backlogs get worse.

The January 2023 Visa Bulletin marks month 2 of the cut-off dates for EB-2 ROW, and my expectation is that the cut-off dates will remain and it is possible that EB-2 ROW will become “unavailable” later this fiscal year due to relatively fast processing by USCIS of EB I-485 applications.

If you are a STEM-based F-1 student not born in India or China, EB-2 NIW may still be a viable route to a green card for you but you will want to plan ahead and potentially act quickly.

Month 1 for a Cut-Off Date for EB1 India/China

It is rare for the EB1 category to be backlogged. This is mainly because it is very hard to qualify for EB1 so the number of people seeking a green card in this category is limited.

But this fiscal year, in only the 4th month of the fiscal year, there is now a cut-off date being introduced for EB1 India and China. The cut-off date is June 1, 2022, which means that in the month of January 2023, only those EB1 immigrants born in India or China who had filed their EB1 I-140 petition before June 1, 2022, are eligible to file their I-485 applications.

It is possible that this EB1 cut-off date will move up during the rest of the fiscal year but it is also possible, like EB2 ROW, that EB1 India and China will become “unavailable” later this fiscal year.

The irony of the situation is that I believe these cut-off dates for EB1 and EB2 ROW are because USCIS is processing EB I-485 applications quickly, and their faster processing means they are using up the annual quota quickly.

Traditionally USCIS has been very slow to process EB I-485 applications and that slow processing meant that the annual quota for EB immigrant visas was generally used up in the last month of the year (September). Traditionally a disproportionate number of EB I-485 applications were approved in summer (4th quarter of the fiscal year). The slow processing of EB I-485 applications allowed for the cut-off dates to stay current for longer.

However, during the last fiscal year (FY2022 that ended September 30, 2022), USCIS revamped its system for processing EB I-485 applications and now uses the National Benefits Center and local field offices. The result of this new approach is that there are many more adjudicators available to review and approve EB I-485 applications, and by processing pending EB I-485 applications much faster, they are using up the annual allotment of green cards much faster, meaning cut-off dates are being introduced sooner in the year and in more categories.

What’s Ahead?

Without a change in the law, I anticipate that the cut-off dates that exist in the January 2023 Visa Bulletin will continue for the rest of the fiscal year, or - as noted above - immigrant visas will become “unavailable” as categories get used up.

I anticipate that EB3 ROW will soon face cut-off dates, particularly as U.S. consulates become more clearly open to processing and issuing EB immigrant visas.

The implications of widespread and worldwide cut-off dates are wide-ranging (and not good). I hope to write about the implications in coming posts. Experienced immigration attorneys and employers who have based strategies and plans on the assumption that certain categories and nationalities will be current need to quickly review and revise plans. That is easier said than done.

I do realize this post has not exactly been good news, but hopefully I have been able to shed some light on the January 2023 Visa Bulletin and the road ahead.

Please feel free to share questions or comments below, and I will do my best to respond.

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Foreign nationals in the United States face a wide variety of obstacles in connection with U.S. immigration law and having a stable life. The system is extremely difficult to navigate.

One frustrating thing that sometimes occurs is when an employer does not provide full copies of immigration filings made on behalf of an employee. This includes PERM applications and PERM-based I-140s.

I have said this in other contexts but I am saying it for the first time (I think) in my newsletter: If you have been sponsored for a PERM application and you have a PERM-based I-140 approved and you do not have a copy of the PERM-based I-140 filing, you can contact USCIS directly and ask for a copy of the I-140 filing. This is a free service through the Freedom of Information Act (FOIA).

To do a FOIA request, you don’t need an attorney. You can simply go online and get the I-140 filing. Details can be found here.

But here is a new twist on a FOIA request: In a recent case, where a PERM-based I-140 was approved but the attorney and employer did not receive a copy (presumably through officer incompetence) - rather than waste time trying to get a duplicate approval notice (which is often one of THE most frustrating things to do in immigration law), we just had the foreign national do a FOIA request and within a month she had a complete copy of the I-140 file and documentation that the I-140 was approved.

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Some assumptions –

• You are in F-1 OPT status;

• You work for a private sector employer who will try for an H-1B for you in the H-1B cap lottery;

• You were born in India;

• You are not married, or if married, your spouse is also born in India.

Options –

• Try for H-1B three times in the H-1B cap lottery while you work in F1 OPT and STEM OPT status;

• Try for O-1 if you are not chosen in the H-1B cap lottery (this will require employer support as O-1s require an employer petitioner; but you can pay personally to prepare the case or you can start preparing the case now and hire a private lawyer if you work for a big company that is very slow to do things like this – and yes, it is embarrassing but there are lots of big companies represented by big law firms slow to do things like this);

• If your employer will not support O-1, look for an employer that will or look for a job at a cap-exempt H-1B employer (college, university, or university-affiliated hospital are the best bets).

• I would not recommend EB-1A or EB-1B.  Very few F-1 students are eligible for EB-1A or EB-1B.  But I can review your CV (resume) if you really want. You can also probably find a lawyer willing to do it. It turns out you can find a lawyer willing to do almost anything.

• I don’t recommend EB-2 NIW at this time as you are from India and it won’t help you much in the short term.  If you get chosen in the H-1B cap lottery, then you could potentially go for EB2 NIW at that time (after getting your H-1B). As mentioned above, you could work on building your O-1 case now and hire a private lawyer to do it but you are a student and you probably don’t want to spend the money to do that. [For some reason international students will spend $100k or more to get their degree but not 10% of that to get a work visa. It is a curious thing.] It would be great if your employer would help you. 

• EB-2 NIW can be a self-petition and is generally better than PERM if you are eligible. (I can explain why EB-2 NIW is better in due course if you are chosen in the H-1B cap lottery).

• If O-1 is not viable, for whatever reason, and your company has international operations, then you can get transferred abroad and try again for the H-1B cap lottery or also try to return on a L-1 (ideally blanket L-1).

NOTE: If you were not born in India, or your spouse was not born in India, then you should look at EB-2 NIW now, ASAP - like yesterday!

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This is a short case study for a recently approved EB-2 NIW case our firm handled.

Background facts:

• Indian-born H-1B worker;

• Bachelor’s in Pharmacy from India; Master’s in Pharmacy from India; Ph.D. from a U.S. university in Pharmacy - graduated in 2020.

• Got a job with F-1 OPT and got lucky in the H-1B cap, approved for H-1B status on October 1, 2021.

Made the wise decision to self-petition for a green card in the EB-2 category to establish a priority date that is attached to her permanently. This was her profile at the time of filing:

• 4 peer-reviewed publications (with 12 citations);

• 8 poster presentations;

• 3 book chapters;

• Modest peer review (2 reviews in 2 different journals).

The evidence for her case was supported by 3 letters of support, plus her self-petitioner support letter that laid out her eligibility pursuant to Matter of Dhanasar.

Timing:

• In March 2022, Webber Law was retained.

• In June 2022, the EB-2 NIW I-140 petition was filed.

• In November 2022, the EB-2 NIW I-140 petition was approved by the USCIS Nebraska Service Center without RFE.

Note: If she had waited for her employer to do PERM, she might still be waiting for the prevailing wage request to be issued. Instead, she has an I-140 approved and priority date locked in. Yes, she had to use her own money but wouldn’t you agree it was money well spent?

Now she has an approved I-140 that is attached to her and she can go to any private sector employer and retain her priority date. All she needs is an H-1B transfer. She doesn’t have to be re-sponsored for PERM.

And importantly, she can build her profile and every year we can re-assess on whether EB-1B or EB-1A is possible.

It is still a long road ahead but in my view, this is a winning strategy.

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If you enter the United States and you seek a green card, then the final stage of the green card process is either

• the I-485 adjustment of status application, or

• immigrant visa processing through a U.S. consulate.

The vast majority of EB (Employment-Based) immigrants are already in the United States in another visa status and are seeking to “adjust status” to obtain a green card in the United States through the I-485 process.

If you file an I-485 application to “adjust status” from temporary visa status to permanent resident status, then USCIS rules assume you plan to stay in the United States until you receive a green card. This is an antiquated thought but that is how the law is structured.

Because the assumption is that you will stay in the United States while your green card application is pending, if you leave the United States while your I-485 application is pending, then your I-485 application is deemed ‘abandoned’ UNLESS you first obtain Advance Parole (AP) travel authorization.

** This is the General Rule: You must stay in the United States while your I-485 application is pending until either you obtain AP travel authorization, or you obtain your green card.

There is an IMPORTANT EXCEPTION to the General Rule, namely, the DUAL INTENT EXCEPTION.

If you are in the United States in H-1B/H-4 or L-1/L-2 visa status, then those are considered “dual intent” visas, and so if you have one of the “dual intent” visa status, then you are permitted to travel abroad while the I-485 application is pending and re-enter the United States with a valid H-1B/H-4 or L-1/L-2 visa.

So the IMPORTANT EXCEPTION TO THE GENERAL RULE OF ABANDONMENT IS if you travel abroad with a valid dual intent visa status, then your I-485 is NOT considered abandoned.

People who are in the United States in H-1B/H-4 or L-1/L-2 status therefore have considerable advantage when filing their I-485 than people in any other status. It is precisely this important exception why some people incorrectly think that only dual intent non-immigrants can process for green cards. That is not correct. Anyone in any visa status can potentially seek a green card.

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Now, if you are in any other visa status besides dual intent visa status (H-1B/H-4, or L-1/L-2), and you file your I-485 application, then you MUST stay in the United States until you either get a green card or you get AP travel authorization.

• Sadly it can take several months to get a green card or AP travel authorization.

• In theory it is possible to request expedited AP travel authorization but as a practical matter, in December 2022 (at the time I am writing this post), it is basically impossible to get expedited AP.

(Hopefully things will improve in 2023).

NOTE 1: If you were ever in the United States and you were “out of status” - then you may not necessarily be eligible for AP travel authorization. I mainly work with non-immigrants who have NOT violated their non-immigrant visa status and so if they file their I-485 applications, we also generally apply for and generally receive their AP travel authorization, but people who have been out of status should tread cautiously about the availability of AP travel authorization and in general people who have been out of status should retain qualified legal counsel to advise them on important issues like this.

Overall, you do not want to casually travel abroad and find out you cannot easily re-enter the country or that you have ‘screwed up’ something you filed and was still pending.

NOTE 2: If you get AP travel authorization, which is sometimes part of an EADAP “combo card” but is also sometimes a standalone document, and you do travel abroad, then when you re-enter the United States, it is absolutely important that you affirmatively present your AP travel authorization to U.S. Customs because occasionally with busy airports and busy people, a person might accidentally get admitted in their prior F-1 or J-1 or O-1 visa status (or whatever) when they really need to be ‘admitted’ with AP travel authorization.

(Immigration nerds will note that ‘admitted’ is not the right word when you present AP travel authorization; rather you are ‘paroled’ back into the country - but that sounds sort of shady and criminal!)

NOTE 3: When a person does present AP travel authorization to U.S. Customs, that person should expect additional processing (QUESTIONING) in ‘secondary’ because technically the U.S. Customs officer can (and almost always does) check to make sure the underlying I-485 application is still pending. If the I-485 application had been denied while you were abroad, then the U.S. Customs officer would have a potential basis to deny entry (parole) to you.

This is another thing to consider - if you decide to travel abroad and USCIS issues a request for evidence or biometrics appointment notice, you will want to arrange with a family member or friend to check your mail daily as you do not want to miss any important mail from USCIS. You probably do NOT want your mail held by the U.S. Post Office. It is much better to have a friend or family member check your mail daily.

To be clear - going into Secondary processing at U.S. Customs is a real drag, especially if you are traveling with small children. You have just completed a long international flight and now you might end up sitting around in a government office for an extra 1-2 hours (or more!). No fun. So keep that in mind if you really, really need to travel to your 2nd cousin’s wedding in Goa, with your toddler.

NOTE 4: People in the US in F-1 or J-1 or O-1 visa status (or various other non-dual intent statuses, like TN or R-1) - those people might consider processing their final stage green card process through immigrant visa processing as opposed to adjustment of status and continuing in their current non-dual intent nonimmigrant status. These are important considerations where you might want to consult a qualified attorney.

• If you are going through EB immigration and you will be filing an I-140, you really want to make a plan at the time you file the I-140 because if there is ANY CHANCE you want to do immigrant visa processing, then you should indicate it on the I-140 so that the I-140 approval is sent to the U.S. Department of State’s National Visa Center.

• It is much easier to select/elect “immigrant visa processing” and then change your mind and do “I-485 adjustment of status” than vice versa. If you later decide to do immigrant visa processing but you already have a pending or approved I-140 prepared for adjustment of status, then you may have to file Form I-824, which is relatively expensive and slow. ACTUALLY VERY SLOW!

In general, you should always tread cautiously when you leave the United States and think through the basis for which you will return and what documents will be required.

Leaving the United States actually results in a lot of potential problems for people but I realize that in the year 2022, many people have regular international travel plans.

FINAL NOTE: The above relates to non-immigrants transitioning to legal permanent resident (green card status). There are separate important issues for green card holders who plan to travel abroad especially if they are going to take an international assignment which means they will be abroad for several months or years. I hope to post separately (and soon) on those ‘green card retention’ issues.

Thank you for taking time to read this post.

If you have questions, please put them in the comments or email me at bob@webberimmigration.com.

Bon Voyage (if you can)!

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