Immigration FAQs

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

• Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
• Employment-Based Immigrants (see below).
• Investment-Based Immigrants (Investors in a U.S. business that creates jobs for ten U.S. workers).
• Refugee and Asylum (Persons fleeing persecution in their home countries).
• Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Current filing fees can be found on USCIS’ website.

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes. The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

This determination is made on a case-by-case basis. In some instances, we recommend filing both an EB-1 and EB-2 NIW if the NIW is stronger, but you are subject to a backlog in the EB-2 category. If filed at the same time, we charge a reduced rate for the second petition. We will work with you to determine the best option for you.

Government processing times vary, and the most current processing times are posted at www.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence varies significantly from 6-12+ months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  We will keep you apprised of the processing time for the AOS at the time your EB-1/NIW is approved. The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is over 90 days.

Once you provide the requested documents, we generally take 3-4 months (depending on the complexity of your case) to file your case. This time frames includes: our review of the documents provided; preparation of the case strategy and letters plan; your review and approval of the case strategy; internal drafting and review of the detailed reference letters; your review and edits to the reference letters; your coordination of review and signature of the final letters by your references; and final preparation of the forms, evidence, and cover letter with detailed legal argument to USCIS.

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

We work on each case as a team however, you will have an attorney and a technical writer assigned to your case. The team will work to review your documents and determine a strategy for the presentation of your case. The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.

If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.

However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.

The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.

Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.

Yes. USCIS has recently established a process to transfer the underlying basis of pending I-485 application from one I-140 to another, provided that the applicant meets the following requirements: the applicant’s priority date is current under the Final Action Dates chart for the I-140 category that the applicant wishes to use; the applicant has continuously maintained eligibility for adjustment of status; and the applicant has a pending I-485 which was based on an original I-140.

A request to transfer a pending I-485 from one I-140 to another I-140 must be made in writing and the request must also be accompanied with a completed Form I-485J Supplement, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), if a job offer is required and the I-140 the applicant wishes to use has already been approved. If an I-485J is included, the request should be submitted to the USCIS Western Form Center in Montclair, California. If an I-485J is not included, the request must be submitted to the USCIS office with jurisdiction over the pending I-485. USCIS has discretion to grant or deny any transfer request.

Yes, with a few caveats. Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.

The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will generally not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.

The first caveat is if the I-485 accompanies the extraordinary ability I-140 which is later denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.

The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will generally not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.

Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.

Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.

One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.

Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.

One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).

Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait. However, in cases where the person’s ability to extend their H-1B nonimmigrant status past their six-year maximum under AC-21 can be limited by the timing of the filing of the I-485 when their priority date is current, we advise to please check with the attorney since, in those cases, it would be prudent to file the I-485 concurrently with the I-140.

Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.

Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.

If you are an EB-5 investor who already has his or her conditional green card before the visa backlog is established, you will not be subject to the visa backlog. If you don’t have your conditional green card before the visa backlog is established, you will be subject to the backlog.

Unfortunately, no. You cannot use your EB-2 or EB-3 Priority Date for your EB-5 petition. Your EB-5 priority date is the date USCIS received your I-526 Petition.

Unfortunately, no. You cannot use your children’s country of birth to avoid the visa backlog. All of you would be subject to the EB-5 backlog.

Good news – you can use your spouse’s country of birth to avoid a visa backlog. If your spouse was born in any country without a visa backlog in the EB-5 category, you and your entire family can avoid the backlog for your birth country.

Yes. Unfortunately, the country against which you are “charged” for your visa number is your country of birth. Because you were born in a backlogged country, your visa and that of your family will be charged against the visa numbers for that country.

The law sets limits on how many green cards (or immigrant visas) can be issued in any one category. Under the law, EB-5 generally receives about 10,000 visas every fiscal year (from October 1 to September 30 of the following year). If the Department of State expects to issue all of the available EB-5 visas in one fiscal year, a per-country limit is instituted whereby each country can only get 7% of the visas. For EB-5, a per-country limit means that each country can get about 700 visas per year.
When there are more applicants than available visas, the government establishes a cut-off date (published monthly). Every applicant whose I-526 filing date (aka priority date) appears before the established cut-off date is eligible to apply for and receive green cards. If an investor’s priority date occurs after the visa-cutoff date, they are not eligible to receive their green cards and must wait until their priority date is current.

Investors from that country will still be able to invest, will still be able to file I-526 petitions, and will still be able to have their I-526 petitions approved. However, the final step of the process – issuance of the conditional immigrant visa or adjustment of status to conditional permanent residence – will not occur until there is a visa number available for the investor.

Congress has allocated approximately 10,000 visa numbers for EB-5 investors and family members. Under the 2022 EB-5 Integrity and Reform Act (“RIA”), 32% of the annual EB-5 immigrant visa quota is set aside for specific types of TEA projects. Here is the breakdown of what those set-asides are reserved for:

• 20% are for those investing in a rural area of the United States;
• 10% are for those investing in a high unemployment area (designated by USCIS);
• 2% are for those investing in qualified infrastructure projects administered by a government entity.

There are several basic requirements for an EB-5 visa.

1. Invest the minimum amount in a qualified US business (“New Commercial Enterprise” or NCE) or approved regional center
2. Create 10 permanent jobs (direct or indirect) for American workers with the NCE
   There are three steps to the EB-5 process:
3. I-526 Petition: Once an investor has made the required investment, they would file the I-526 petition. This petition includes project documents and documents related to the investor’s source of funds.
4. Conditional Resident Application: USCIS is currently allowing for concurrent filing of a green card application. This means that most applicants, except for those born in India, China, and Vietnam, are eligible to apply for their green card along with the I-526 petition if they are present in the U.S. and meet specific requirements. Otherwise, upon approval of the I-526 petition, if their priority date is current, the investor and family can apply for their conditional green card. The conditional green card, once approved, is valid for 2 years. Within the 90 days before the expiration of the green card, the investor and family members apply to remove the conditions on their green card by filing form I-829.
5. Form I-829: USCIS will review the and confirm that the investor’s funds stayed at risk throughout conditional resident status and the project created the necessary jobs. Once the I-829 is approved, the investor and family are lawful permanent residents of the U.S.

Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.

If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.

However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.

The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.

Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.

Yes. USCIS has recently established a process to transfer the underlying basis of pending I-485 application from one I-140 to another, provided that the applicant meets the following requirements: the applicant’s priority date is current under the Final Action Dates chart for the I-140 category that the applicant wishes to use; the applicant has continuously maintained eligibility for adjustment of status; and the applicant has a pending I-485 which was based on an original I-140.

A request to transfer a pending I-485 from one I-140 to another I-140 must be made in writing and the request must also be accompanied with a completed Form I-485J Supplement, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), if a job offer is required and the I-140 the applicant wishes to use has already been approved. If an I-485J is included, the request should be submitted to the USCIS Western Form Center in Montclair, California. If an I-485J is not included, the request must be submitted to the USCIS office with jurisdiction over the pending I-485. USCIS has discretion to grant or deny any transfer request.

Yes, with a few caveats. Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.

The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will generally not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.

The first caveat is if the I-485 accompanies the extraordinary ability I-140 which is later denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.

The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will generally not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.

Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.

Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.

One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.

Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.

One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).

Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait. However, in cases where the person’s ability to extend their H-1B nonimmigrant status past their six-year maximum under AC-21 can be limited by the timing of the filing of the I-485 when their priority date is current, we advise to please check with the attorney since, in those cases, it would be prudent to file the I-485 concurrently with the I-140.

Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.

Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.

No. American employers are not required to document that a citizen of another country did not take a job from a qualified American if that person is working under a F-1, J-1, or H-1B visa. Employers may be required to document that they did not turn down a qualified American applicant for the position only when they wish to hire foreign citizens on a permanent basis and sponsor them for permanent resident status (a “green card”).

With a bit of planning, an employer can often hire international students to continue to work for them in the H-1B visa category for a total of six years (authorization is granted in two three-year periods). The H-1B is a temporary working visa for foreign nationals skilled in a “specialty occupation.” The application procedure to the USCIS is straightforward. The job must meet two basic requirements:

• The salary must meet the prevailing wage as defined by the Department of Labor, and
• A bachelor’s degree or higher is a minimum normal requirement for the position.

Work authorization documents are different depending on their status and the training. For optional practical training (OPT), F-1 students receive from United States Citizenship and Immigration Services (USCIS) an Employment Authorization Document (EAD), which is a small photo identity card that indicates dates for which they are permitted to work. For curricular practical training (CPT), F-1 students receive authorization from school (NOT from USCIS) on the student’s Form I-20. J-1 students receive work authorization in the form of a letter issued by their institutions.

No. International students must have the work authorization before they begin actual employment, but not before they are offered employment. In fact, many J-1 students must have a written job offer to apply for work authorization. Many F-1 students will be in the process of obtaining work authorization while they are interviewing for employment. Students can give employers a reasonable estimate of when they expect to receive work authorization.

F-1 students are eligible for curricular practical training (CPT) for up to 12 months – such as co-op or internship — before completing their studies. On top of that, they are eligible for work authorization lasting an additional 12 months (or 36 months for graduates with STEM degrees). This work authorization is referred to as optional practical training (OPT). However, if they work full-time for one year or more during CPT, they are not eligible for OPT. Students with a J-1 visa are usually eligible to work up to 18 months following graduation, or 36 months for postdoctoral fellows. They may also be eligible to work part-time during their program of study.

Yes! Federal regulations permit the employment of international students on F-1 and J-1 visas within certain limits. These visas allow students to work in jobs related to their major fields of study. F-1 students can work on “practical training.” J-1 students may work on “academic training.” There are no additional costs to hiring international students over any other worker — just the time and effort to interview and select the best candidate for the job. The international student office from the student’s university handles the paperwork involved in securing the work authorization for F-1 and J-1 students. In fact, a company may save money by hiring an international student because the majority of them are exempt from Social Security (FICA) and Medicare tax requirements.

If the recruitment that was used during the original nationally competitive recruitment process is being used for the PERM case, the application needs to be filed within 18 months of the date of selection. The most conservative approach is to use the date listed on the offer letter as the date of selection. If the 18-month window has passed, a new nationally competitive recruitment process must be undertaken to re-test the labor market.

There is a special provision in the Labor Certification regulations (20 CFR § 656.18) that govern positions for faculty/teaching positions at colleges and universities. Unlike the regular PERM process, the university needs to demonstrate that the individual selected for the position was the best qualified candidate for the position through a nationally-competitive recruitment process. The standard for regular PERM cases (non-faculty/teaching roles) is that there are no minimally qualified applicants available, willing and able to take the position.

Employers must utilize several forms of recruitment within the 180 days before filing the application. Employers must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity onsite at the company as well through any inhouse media in which jobs are ordinarily posted. For professional positions, employers must also conduct three additional recruitment steps (such as using their website “careers page,” posting on other websites, local or ethnic newspapers, or college placement offices) prior to filing the application.

Employers must assess any US workers who apply and may not proceed with the application if there are qualified US workers available, willing and able to take the position.

Current processing times for the two DOL stages in the process – the Prevailing Wage Determination (PWD) stage and the Labor Certification decision stage – are posted on the Office of Foreign Labor Certification website. In addition, between those two stages of the process, the employer must conduct specified recruiting steps no fewer than 60 days and no more than 180 days prior to filing the Labor Certification application.

PERM applications are processed electronically through one processing center in Atlanta.

PERM stands for Program Electronic Review Management and is the first step in hiring a foreign national permanently for a U.S. employer on an immigrant visa, rather than temporarily on a nonimmigrant visa. Through the PERM system, the Department of Labor (DOL) issues a “labor certification” that is required for many green card petitions. Through PERM, employers attest that they have taken specific steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker interested in and available for the position. Employers are responsible for documenting their compliance with the recruitment steps in the regulations, and must submit that documentation to DOL if DOL audits their applications.

The process may involve two or three steps. If an individual qualifies as extraordinary in his or her field or the individual’s employment is in the “national interest”, then the individual or his or her employer is required to file the Form I-140, Petition for Immigrant Worker, with supporting documentation. If the individual qualifies as a multinational manager or outstanding researcher, then the employer must file the I-140 petition. However, if the individual does not fall into one of these categories, then the employer must complete the labor certification process prior to filing the Form I-140. Concurrently with the filing of the I-140 petition, the individual may be eligible to file Form I-485, Application to Register Permanent Residence or Adjust Status.

There are five categories of individuals who are eligible to apply for permanent resident status. They are:

• Family-Sponsored Immigrants (Spouses, sons and daughters, and parents of U.S. citizens, and spouses and unmarried sons and daughters of permanent residents).
• Employment-Based Immigrants (see below).
• Investment-Based Immigrants (Investors in a U.S. business that creates jobs for ten U.S. workers).
• Refugee and Asylum (Persons fleeing persecution in their home countries).
• Diversity (DV) Lottery (Persons from countries with below-average immigration to the U.S. selected in an annual lottery).

A green card, also known as a “Permanent Resident Card”, “Alien Registration Receipt Card” or “Form I-551” is a plastic card which documents that an individual has the authority to live and work in the U.S. indefinitely (called “lawful permanent residence”). This identification document is mostly commonly known as the “green card” because it is green. The green card contains the individual’s photo, fingerprint, signature as well as other identifying information. While the card itself may expire and have to be renewed, the individual’s status as a lawful permanent resident (LPR) remains in effect unless it is abandoned or taken away.

Current filing fees can be found on USCIS’ website.

We will provide you a fixed legal fee during the consultation once we evaluate your case.  The legal fee is broken down based on the stages of preparation and filing, and a breakdown will also be provided during your consultation.  Please ask any questions you may have about the quoted legal fee and what it includes. The legal fee includes all of the legal services specified above, as well as our preparation of a detailed transmittal letter to USCIS explaining how and why you qualify for EB-1 or NIW, advice regarding premium processing and concurrent filing, preparation of all government forms, preparation of applications for permanent residence, preparation of applications for employment authorization, preparation of applications for travel documents, prompt response to all telephonic and email inquiries, and follow up with USCIS if there are processing delays.  In addition, we do not bill separately for miscellaneous costs and expenses, including photocopies and FedEx.  Rather, we add 6% to each legal fee payment to cover the expenses.  We accept Visa, MasterCard and Discover.

If you are not subject to a quota backlog, you have the option of filing concurrently.  Once we are working on your case, we will provide our recommendation; but the final decision is yours.

This determination is made on a case-by-case basis. In some instances, we recommend filing both an EB-1 and EB-2 NIW if the NIW is stronger, but you are subject to a backlog in the EB-2 category. If filed at the same time, we charge a reduced rate for the second petition. We will work with you to determine the best option for you.

Government processing times vary, and the most current processing times are posted at www.uscis.gov.  Presently, the average government processing time for EB-1 cases is about 8 months.  The average government processing time for NIW cases is also about 8 months.  The average processing time for the application for permanent residence varies significantly from 6-12+ months, but it will only be processed once the EB-1 or NIW is approved, and the priority date is current.  We will keep you apprised of the processing time for the AOS at the time your EB-1/NIW is approved. The average processing time for the applications for employment authorization and travel document, after the filing of the application for permanent residence, is over 90 days.

Once you provide the requested documents, we generally take 3-4 months (depending on the complexity of your case) to file your case. This time frames includes: our review of the documents provided; preparation of the case strategy and letters plan; your review and approval of the case strategy; internal drafting and review of the detailed reference letters; your review and edits to the reference letters; your coordination of review and signature of the final letters by your references; and final preparation of the forms, evidence, and cover letter with detailed legal argument to USCIS.

Of course.  We provide a detailed Input Questionnaire with specific questions to answer and information to provide in written form.  The Input Questionnaire also outlines documentation that you will need to send.  When you are ready to proceed, we will have an input call to review the information and documentation requested in the questionnaire and guide you specifically on what is needed for your individual situation.  This call will be about an hour.  We will also provide samples of input statements to give you an idea of the level of detail and technicality required.

You will need to provide a detailed written input statement describing your field, your accomplishments, the importance of your work, and other requested information.  As best you can, this information should be written in terms that a lay person could understand.  It is not a problem to use technical terms and concepts, as long as you explain the meaning behind those terms and concepts.  We will work with what you provide to draft detailed letters, but you will need to carefully edit and review this information.  This is therefore very much a collaborative effort between yourself and our team.  For example, you will be asked to respond to our requests for more information about your work or questions we may have regarding your input statement.  You will also be expected to identify appropriate referees, and to coordinate the sending and receiving of reference letters directly with your referees.

We work on each case as a team however, you will have an attorney and a technical writer assigned to your case. The team will work to review your documents and determine a strategy for the presentation of your case. The technical writer will have primary responsibility for helping to frame your achievements in terms that the immigration officer can understand.

The firm’s EB-1 practice team works closely with you to prepare a petition that clearly reflects how your achievements meet the EB-1 and/or EB-2 regulatory standards.  In addition to working with you, we assist in framing your achievements in terms a lay person can understand.  Our success with these petitions is based in large part on the time we spend understanding the nature and significance of your achievements and translating very technical concepts into terms that the immigration adjudicators can understand and appreciate.  These detailed explanations, coupled with corroborating documentation, provide a picture of your accomplishments that facilitates the immigration examiner’s understanding of just how extraordinary you are.

A very significant part of our practice is focused on representing individuals seeking to qualify for permanent residence (“green card”) through the Extraordinary, Exceptional, Outstanding, or National Interest categories. Our success rate is such that over 25 universities, hospitals and research institutions, as well as other immigration attorneys, refer individuals to our firm to prepare these petitions.

Yes, an L nonimmigrant may have the dual intent of becoming an immigrant, if permitted to do so, and at the same time have a present intent to be an L nonimmigrant. He or she is not required to maintain a foreign residence abroad during his or her stay in the U.S. as an L nonimmigrant.

An L-2 spouse may apply for a Social Security Card by presenting either: (i) an employment authorization document issued by USCIS; or (ii) a marriage certificate and I-94 Arrival/Departure record showing current L-2 status. Other dependents may apply for a Taxpayer Identification Number (ITIN) in some circumstances. This application is filed with the Internal Revenue Service (IRS).

A spouse and dependent children (unmarried children under the age of 21) of an L-1 employee are entitled to L-2 status. The spouse may work once he or she has obtained an employment authorization document, but the minor children may not.

Yes, as long as all companies for which the employee will work have the required qualifying relationship with the prior overseas employer and each has obtained approved L-1 petitions on behalf of this employee.

If the employee wants to switch to an employer which does not have the required qualifying relationship with his or her prior overseas employer, the employee must seek to qualify in some other nonimmigrant category, such as H-1B.

May an individual in the U.S. in another nonimmigrant visa status change to L-1 without leaving the U.S.?

An individual who is the beneficiary of an approved L petition wishing to apply for an L nonimmigrant visa must make an appointment and appear in person before a U.S. consular officer at a U.S. Embassy or Consulate outside the U.S. Most applicants apply in their home country. In certain instances, an individual may have his or her visa issued in Canada or Mexico, or in another country than his or her home country.

Yes, an L-1 nonimmigrant employee may travel outside the U.S. if he or she is maintaining valid status and has a valid L-1 visa in his or her passport. If the employee does not have a valid L-1 visa, or his or her visa has expired, then the employee must obtain an L-1 visa abroad.

A manager or executive may remain in the U.S. for up to seven years. A specialized knowledge employee may remain in the U.S. for up to five years. A specialized knowledge (L-1B) transferee who has held a managerial position in the U.S. for more than six months before the expiration of the five years may change to managerial (L-1A) status and obtain a further extension up to the seven year maximum. The initial approval is for up to three years (except for start up companies or new offices of overseas companies, for which first approval is limited to one year). Extensions are granted in increments of up to two years.

Regular processing with USCIS typically takes at least two months. Premium processing (for an additional $1225 fee) is available and processing is to be completed in 15 days or less. Also, the Premium Processing Unit may be contacted directly by phone and e-mail. Because of mandated security checks, obtaining an L visa at a U.S. Consulate can vary from as little as one day to months depending upon the U.S. Consulate where the application is made and the country of citizenship of the applicant.

There is no specific required salary.

The employer must document that a qualifying corporate relationship exists between the overseas company and the U.S. company, that the transferee was employed by the overseas company in a managerial, executive or specialized knowledge capacity for at least one continuous year within the past three years, and that the transferee will be employed in a managerial, executive or specialized knowledge capacity by a related company in the U.S.

The employer must file an L-1 petition (Form I-129 and L Supplement) with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the transferee at the Service Center having jurisdiction over the place where the L-1 will work. Upon approval, the transferee, if outside the United States, may apply for an L-1 visa at a U.S. Consulate. Certain large employers may obtain a “Blanket” L-1 petition. This enables executives, managers and specialized knowledge professionals employed outside the United States by a qualifying organization to apply for the L-1 visa directly at a consulate, without first obtaining an approved individual L-1 petition from USCIS. Canadian citizens may apply at the border for admission to the United States as L nonimmigrants by filing an L-1 petition with the Immigration Inspector at the border or at Pre-Flight Inspection Unit at an international airport in Canada. A petition previously approved by a USCIS Service Center is not required for Canadian citizens.

An employee who possesses special knowledge of:

1. The organization’s product, service, research, equipment, techniques, management or other interests and its application in international markets.
2. Has advanced level of knowledge or expertise in the organization’s processes and procedures.
3. The specialized or advanced knowledge possessed should be different from that generally found in the particular industry.
4. Specialized knowledge described in 1. above should be noteworthy or uncommon.
5. Specialized knowledge does not need to be proprietary or unique, but knowledge of the company’s processes and procedures must be advanced.

A manager is an employee who primarily:

1. Manages the organization, or a department, sub-division, function, or component of the organization.
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization.
3. Has the authority where directly supervising one or more employees to hire and fire, or recommend those as well as other personnel actions (such as promotion and leave authorization).
4. Manages an essential function instead of supervising other employees and operates at a senior level within the organizational hierarchy or with respect to the function being managed.
5. Exercises discretion over the day-to-day operations of that function.
6. Spends most of his or her time performing managerial or executive duties rather than producing a product or providing a service.
7. Supervises professionals if a first-line supervisor.

An executive is an employee who primarily:

1. Directs the management of an organization or a major component or function of the organization.
2. Establishes the goals and policies of the organization, component, or function.
3. Exercises wide latitude in discretionary decision-making and receives only general direction from more senior executives, the board of directors or the organization’s shareholders.

The L-1 status is available to a person who has worked abroad for one continuous year within the preceding three years in an executive, managerial or specialized knowledge capacity and is being transferred temporarily to the U.S. to work in an executive, managerial or specialized knowledge capacity for a parent, affiliate, subsidiary, or branch in the U.S.

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a U.S. citizen child who is over 21, a spouse who already has a green card, or a U.S. citizen spouse, please contact us to discuss your options.

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for an extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended. If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one-year increments, as long as the labor certification or I-140 petition more than 365 days before the extension takes effect, as long as either the labor certification or immigrant visa petition remains pending.

Your spouse’s country of birth also may be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

Your country of birth is what determines your country of chargeability.

The priority dates considered “current” in each category are updated monthly by the Department of State, and are published in the Department’s Visa Bulletin (available at http://travel.state.gov). The priority dates move forward and backward each month depending on the number of cases processed by the Department of State and by United States Citizenship and Immigration Services. While large movements do sometimes happen to use all the available immigrant visas each year, we predict that backlogs will continue to be an issue unless Congress makes more immigrant visas available for skilled foreign nationals.

For an individual to obtain their green card, a visa number must be available. This is referred to as the priority date being “current”. The priority date is current if there is no backlog in the category, or if the individual’s priority date is on or before the date listed as current in the State Department’s monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

A priority date can best be thought of as your “place in line” for a backlogged quota. If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed under PERM. If your category is employment-based but does not require a labor certification, then the priority date is established on the date USCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved. If you have multiple I-140s filed for you, by more than one employer or for more than one job or in more than one category, your petitions are all assigned the earliest priority date to which you are entitled.

Employment-Based Second Preference (EB-2) includes members of professions holding advanced degrees (Master’s or Ph.D.) The position must require a master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job that requires a minimum of a bachelor’s degree PLUS five years of progressively responsible experience will be considered equivalent to a master’s level position and will qualify for EB-2.; EB-2 also includes persons of “exceptional ability in the sciences, art, or business.” Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected, as evidenced by criteria in the regulations. Employment-Based Third Preference (EB-3) includes professionals (position requires at least a bachelor’s degree) and skilled workers (position requires at least two years of education, training or experience). “Other workers” include positions that require less than two years of education, training, or experience.

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, or for a particular nationality, a waiting list is created, and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date”. The priority date is the single, most important, factor in any immigration case.

A spouse and dependent minor children (unmarried children under the age of 21) of an H-1B employee are entitled to H-4 status. Spouses may be authorized for employment only once the H-1B is the beneficiary of an approved I-140 (immigrant visa/green card) petition. Children may not accept employment in H-4t status. Both spouses and children may study in the U.S. If a spouse or child is eligible for a different status than H-4 (including H-1B), they may elect to enter the U.S. in that status rather than entering as an H-4.

Prior recruitment of U.S. workers is not required for most H-1B petitions., Only certain “H-1B Dependent” employers and employers with past violations of the LCA regulations need to have any documentation regarding recruitment.

If the change in position is significant, a new LCA and H-1B petition will have to be filed. For most relocations, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term assignment.

If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer. If the change in position is significant, a new LCA and H-1B petition will have to be filed. For most relocations, a new LCA and H-1B petition will have to be filed. There are some exceptions including if the relocation is not a permanent relocation but a short-term assignment.

If an H-1B nonimmigrant wants to switch employers, the new employer must file a petition for H-1B status with USCIS. The individual may commence work for the new employer when the new H-1B petition is filed. This only applies to employees already granted H-1B status with another employer.

Yes, an employee in H-1B status may travel if the H-1B status is valid and he or she has a valid H-1B visa in the passport. If the employee does not have a valid H-1B visa, then the employee must obtain an H-1B visa abroad before returning to the U.S.

If the employer terminates the employment for any reason and before the approved expiration date, the employer is responsible for notifying USCIS and providing the cost of return transportation of the employee to his or her last place of foreign residence. In this event, the employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf, or can obtain a different nonimmigrant status, within 60 days of the end of employment.

In most cases, an individual may remain in H-1B status for a maximum of six years. The initial petition may be approved for up to three years, and subsequent requests for extensions may be approved for up to a maximum of six years. The six years cannot be extended by changing employers. In certain limited situations, the individual can obtain H-1B extensions beyond six years while a permanent resident case is pending.

An H-1B individual may work for more than one employer if each employer has properly filed an H-1B petition. All employees after the first H-1B employer can allow the employee to commence employment after the filing of the new H-1B petition.

Yes. An H-1B employee may work part-time if the employer petitioned for part-time employment and all other H-1B requirements are met.

An employer may request a formal Prevailing Wage Determination from the Department of Labor, may use the Department of Labor’s Online Wage Library, or may rely upon wage data from an independent published wage survey if the survey meets Department of Labor requirements.

Yes. The wage paid to an H-1B employee must be the higher of 1) the “prevailing wage” (generally, the average wage for the occupation in the geographic area in which the employee will be employed, or the wage set by a union contract for the position) or 2) the “actual wage” (the wage paid by the employer to other employees in the occupation with similar qualifications).

The following documentation is required:

• An approved LCA from the DOL;
• Documentation about the job offered to prove it qualifies as a specialty occupation;
• A copy of the individual’s U.S. degree (bachelor, master, or Ph.D.) and/or a foreign degree with evidence that it is equivalent to a U.S. bachelor’s degree or higher. (A combination of education, specialized training, or experience that is equivalent to a U.S. bachelor’s degree may be submitted to meet this requirement.);
• A copy of any required license to practice the occupation in the state of intended employment.

A U.S. employer must submit a Labor Condition Application (LCA) to the U.S. Department of Labor (DOL). Upon receipt of the certified LCA, the employer must then file Form I-129, Petition for Nonimmigrant Worker, with the H Supplement, Data Collection, supporting documentation, and a copy of the signed and certified LCA with United States Citizenship and Immigration Services (USCIS). Upon approval, the employee may apply for an H-1B visa at a U.S. consulate or will be granted a change of status if they are already in the US.

A specialty occupation is defined as one that requires a “theoretical and practical application of a body of highly specialized knowledge.” The position must require a bachelor’s or higher degree (or foreign equivalent). Examples of specialty occupations include accountant, computer analyst, engineer, scientist, and architect.

An H-1B nonimmigrant visa is available for individuals who are coming into the United States temporarily to perform services as a professional in a specialty occupation. Nonimmigrants who are currently in the United States in a legal status may be eligible to change to H-1B status. An H-1B petition must be filed by a U.S. employer on behalf of the intended employee.

Maybe. “Portability” permits employment-based I-485 applicants to change jobs with their sponsoring employer, or to change employers, if USCIS does not adjudicate their I-485 within 180 days, as long as the I-485 applicant continues to work in the same or similar occupation. According to the current policy memo guiding adjudications, the clock starts ticking on the 180-day period as soon as the I-485 is appropriately filed with USCIS, not when the I-140 is approved. The safest approach before “porting” would be to wait until the I-140 has been approved, and the I-485 has been pending at least 180 days.

If the I-140 is denied, USCIS has no basis for approving the related I-485 unless there is a second I-140 pending. In that case, as described above, USCIS may “match” the I-485 to the second I-140, or we can try to alert them and request a transfer to a pending I-140.

However, the denial of the sole I-140 filed by a person will trigger a denial of the related I-485, either simultaneously with the I-140 denial or at a later date. With respect to individuals who have applied for an EAD and are authorized to work pursuant to a pending I-485, denial of the I-485 may result in USCIS revoking this employment authorization, usually through a Notice advising of the revocation. In addition, an individual dependent on the pending I-485 for authorized stay in the U.S. may have to leave if the I-485 is denied.

The considerations discussed above address most of the risks, advantages, and disadvantages of concurrent filing. One should take into account the financial cost, such as the filing fees and legal fees, associated with the filing of an I-485.

Maybe. In extraordinary ability, outstanding researcher/professor and national interest waiver cases where USCIS is required to make subjective judgments, one may decide to defer filing the I-485. The decision whether or not to file concurrently in these situations may depend on the need for ancillary benefits (EAD and advance parole), the relative strength of the petitions, the aging out of a dependent, or other personal concerns. If an individual’s continued authorized stay in the United States and authorized employment depends on the concurrent filing of an I-485 and EAD, such a filing should be made, but with the understanding that if the I-140 is not approved, the individual will no longer have a legal basis to remain in the U.S.

Yes. USCIS has recently established a process to transfer the underlying basis of pending I-485 application from one I-140 to another, provided that the applicant meets the following requirements: the applicant’s priority date is current under the Final Action Dates chart for the I-140 category that the applicant wishes to use; the applicant has continuously maintained eligibility for adjustment of status; and the applicant has a pending I-485 which was based on an original I-140.

A request to transfer a pending I-485 from one I-140 to another I-140 must be made in writing and the request must also be accompanied with a completed Form I-485J Supplement, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), if a job offer is required and the I-140 the applicant wishes to use has already been approved. If an I-485J is included, the request should be submitted to the USCIS Western Form Center in Montclair, California. If an I-485J is not included, the request must be submitted to the USCIS office with jurisdiction over the pending I-485. USCIS has discretion to grant or deny any transfer request.

Yes, with a few caveats. Generally, if an I-140 is filed seeking to classify a foreign national as an alien of extraordinary ability and a separate I-140 is filed requesting a national interest waiver for the same foreign national, he or she may submit, at the same time or subsequently, an I-485 with one of the I-140 petitions. USCIS has said that only one I-485 per applicant may be filed at a time. If more than one I-485 is pending, USCIS may request that one of the I-485s be withdrawn.

The first caveat is if the I-485 accompanies the extraordinary ability I-140, but the national interest waiver I-140 is approved first, USCIS will generally not transfer the I-485 to the approved I-140 until the extraordinary ability I-140 has been adjudicated. If the extraordinary ability I-140 is approved, the I-485 will, in all likelihood, also be approved.

The first caveat is if the I-485 accompanies the extraordinary ability I-140 which is later denied, and the priority date for the national interest waiver I-140 is current, USCIS will usually, but not always, match the pending I-485 to the approved petition. If the extraordinary ability I-140 is denied, and the priority date for the national interest waiver I-140 is not current, USCIS will not transfer the I-485 to the national interest I-140. USCIS can only transfer the I-485 if a visa number is available for that I-140 petition. Therefore, when the extraordinary ability I-140 is denied, and the national interest I-140 is approved but the priority date is not current, the I-485 will be denied.

The second is if the I-485 accompanies the national interest I-140, and the extraordinary ability I-140 is approved first, again, USCIS will generally not transfer the I-485 until the national interest I-140 is adjudicated. If the national interest I-140 retrogresses, meaning the priority date is no longer current, USCIS can still transfer the I-485 to the extraordinary ability I-140 as long as the extraordinary ability I-140 remains current.

Finally, if the I-485 accompanies one or the other of the I-140s, and that I-140 is denied, and the other I-140 remains pending, USCIS may match the I-485 to the pending I-140 as long as the pending I-140 remains current. If this is missed by USCIS, and the I-485 is denied, it may be necessary to file a motion to reopen.

Yes, once a Receipt Notice for the I-140 is issued, the I-485 can be filed along with this Receipt Notice and the petition and application will be matched up. This strategy may be advisable if the I-140 is ready to file, but the supporting documentation for the I-485 is not ready.

Not always. Because of constantly-changing processing times at the Service Centers and the dozens of consular posts which handle applications for immigrant visas, it is impossible to generally state that concurrent processing is always faster, or always slower, than consular immigrant processing.

One of the main risks of concurrent filing is associated with not maintaining a valid, non-immigrant status. While proper filing of the I-485 does grant permission to remain in the U.S., it is not considered a non-immigrant status. Should the underlying I-140 be denied, the I-485 will also be denied, and applicants who have not maintained a valid, non-immigrant status will no longer have a lawful basis to remain in the U.S.

Issues relating to maintenance of status may be very complicated, and vary depending on the type of non-immigrant status each applicant holds. Therefore, it is very important to discuss potential risks to your or your dependents’ status before either deciding to file concurrently, or before deciding to use EAD or advance parole. In many cases, we advise maintaining a non-immigrant status at least until the I-140 is approved.

One of the main benefits of concurrent filing is that it allows both the principal and his or her dependents to apply for employment authorization (EAD) and travel permission (advance parole). This ability to obtain employment authorization and travel permission is particularly important to those nonimmigrants approaching their maximum authorized stay in nonimmigrant categories such as “H” and “L,” as it may enable them to avoid violation of their status or the accrual of unlawful presence. In addition, the EAD allows job flexibility for the principal (ability to work without H, L or other non-immigrant approval) as well as travel flexibility (ability to travel without a visa).

Note that it is not always necessary for individuals to obtain both EAD and advance parole. For those maintaining H or L status, the advance parole can be used as a travel document and the H or L approval notice can be used to establish authorization to continue working for the sponsoring employer. EAD would only be required if the principal wanted to work beyond the scope of his or her H or L.

To date, that has not been the experience of our office. However, how USCIS prioritizes cases is always subject to change.

Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). An immigrant visa number must be immediately available, meaning that the priority date must be current.

Persons who have engaged in unauthorized employment or otherwise violated their nonimmigrant status may not be eligible. Similarly, persons who are subject to the two-year home residence requirement are not eligible unless this requirement has been waived or the obligation has been fulfilled.

Absolutely not. An individual may continue to wait for approval of the I-140 before filing the I-485, and in many cases we advise that it is prudent to wait. However, in cases where the person’s ability to extend their H-1B nonimmigrant status past their six-year maximum under AC-21 can be limited by the timing of the filing of the I-485 when their priority date is current, we advise to please check with the attorney since, in those cases, it would be prudent to file the I-485 concurrently with the I-140.

Persons seeking to immigrate to the United States as employment-based immigrants must complete two separate processes in order to become permanent residents. First, they must establish that they qualify in one of the employment-based immigrant categories, by filing Form I-140, Immigrant Petition for Alien Worker. Second, they must establish that they qualify for permanent residence under the general rules applicable to all immigrants, whether employment-based or not, which may be done in the United States by filing Form I-485, Application to Register Permanent Residence or Adjust Status, or from outside the United States by completing consular immigrant visa processing. In the past, persons had to wait for the U.S. Citizenship and Immigration Services (USCIS) to approve the I-140 before being able to pursue the second step of the process.

Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category. Concurrent filing affects only the Adjustment of Status (I‑485) process, it does not affect those cases pursuing consular immigrant visa processing.

If the recruitment that was used during the original nationally competitive recruitment process is being used for the PERM case, the application needs to be filed within 18 months of the date of selection. The most conservative approach is to use the date listed on the offer letter as the date of selection. If the 18-month window has passed, a new nationally competitive recruitment process must be undertaken to re-test the labor market.

There is a special provision in the Labor Certification regulations (20 CFR § 656.18) that govern positions for faculty/teaching positions at colleges and universities. Unlike the regular PERM process, the university needs to demonstrate that the individual selected for the position was the best qualified candidate for the position through a nationally-competitive recruitment process. The standard for regular PERM cases (non-faculty/teaching roles) is that there are no minimally qualified applicants available, willing and able to take the position.

Employers must utilize several forms of recruitment within the 180 days before filing the application. Employers must place a job order with the State Workforce Agency (SWA), must post an internal notice of the job opportunity onsite at the company as well through any inhouse media in which jobs are ordinarily posted. For professional positions, employers must also conduct three additional recruitment steps (such as using their website “careers page,” posting on other websites, local or ethnic newspapers, or college placement offices) prior to filing the application.

Employers must assess any US workers who apply and may not proceed with the application if there are qualified US workers available, willing and able to take the position.

Current processing times for the two DOL stages in the process – the Prevailing Wage Determination (PWD) stage and the Labor Certification decision stage – are posted on the Office of Foreign Labor Certification website. In addition, between those two stages of the process, the employer must conduct specified recruiting steps no fewer than 60 days and no more than 180 days prior to filing the Labor Certification application.

PERM applications are processed electronically through one processing center in Atlanta.

PERM stands for Program Electronic Review Management and is the first step in hiring a foreign national permanently for a U.S. employer on an immigrant visa, rather than temporarily on a nonimmigrant visa. Through the PERM system, the Department of Labor (DOL) issues a “labor certification” that is required for many green card petitions. Through PERM, employers attest that they have taken specific steps to recruit U.S. workers and that they have been unable to locate a qualified U.S. worker interested in and available for the position. Employers are responsible for documenting their compliance with the recruitment steps in the regulations, and must submit that documentation to DOL if DOL audits their applications.