FAQ

RFE (Request for Evidence) is USCIS asking for more information:

• Common reasons: Specialty occupation, degree equivalency, employer-employee relationship
• Employer has 87 days to respond
• Response must address all concerns raised
• May need additional documentation, expert letters, detailed job descriptions

Best practices: Work with experienced immigration attorney, respond comprehensively, meet deadline, provide strong evidence.

Bench time on H-1B is problematic:

• H-1B requires productive work in specialty occupation
• Extended bench time may violate H-1B requirements
• Employer must still pay prevailing wage even on bench
• USCIS may question if job is legitimate

Short bench periods (between projects) may be acceptable, but extended bench raises concerns. Employer should find new project or consider termination.

H-1B Lottery Process:

• When: When more than 85,000 petitions are filed during cap season
• How: USCIS randomly selects petitions using computer system
• Two lotteries: Regular cap (65,000) and advanced degree cap (20,000)
• Advanced degree advantage: Get two chances - if not selected in advanced degree cap, entered in regular cap

Additional Information:

• Lottery is completely random - no preference for any factors
• Selected petitions are processed for approval/denial
• Unselected petitions are returned with filing fee
• No way to improve odds - purely random
• Many people apply multiple times before getting selected

Job title changes may require amended petition:

• Material changes (different duties, location, significant salary change) require amended H-1B
• Minor changes (same duties, better title) may not require amendment
• If new title has different prevailing wage, need new LCA
• Consult with immigration attorney to determine if amendment needed

When in doubt: File amended petition to be safe. Better to file than risk violation.

Cap-exempt H-1B doesn't count toward 85,000 cap:

• For employers that are institutions of higher education
• Nonprofit research organizations affiliated with universities
• Government research organizations
• Can file anytime (not just April)
• No lottery, direct processing

Benefits: No cap competition, faster processing, can start anytime. Many universities and research labs are cap-exempt.

Unpaid leave on H-1B is generally not allowed:

• H-1B requires full-time employment and payment of prevailing wage
• Extended unpaid leave may violate H-1B requirements
• Short leaves (vacation, sick leave) with pay are fine
• FMLA leave (if eligible) may be acceptable

Alternatives: Use paid time off, discuss with employer about options, consider part-time H-1B if needed long-term.

If employer asks you to work illegally:

• Refuse immediately - working illegally can get you deported and banned
• Document everything (emails, messages, conversations)
• Report to authorities: DOL, USCIS, or ICE
• Find new employer and file H-1B transfer
• Consult immigration attorney for guidance

Examples of illegal work: Working without valid status, working for different employer without transfer, working in different location without LCA.

Yes, employer can sponsor Green Card through employment-based categories:

• EB-1: Extraordinary ability, outstanding professors, multinational executives
• EB-2: Advanced degree or exceptional ability (may need PERM)
• EB-3: Skilled workers, professionals (requires PERM)

Process: PERM labor certification (for EB-2/EB-3) → I-140 petition → I-485 adjustment (when priority date current).

Timeline: 1-5+ years depending on category and country of birth.

PERM (Program Electronic Review Management) is labor certification required for EB-2 and EB-3 Green Cards:

• Proves no qualified U.S. workers available for the position
• Employer must conduct recruitment (job postings, ads)
• File Form ETA-9089 with Department of Labor
• Processing takes 6-12 months

After PERM approval: Employer files I-140 petition. PERM is valid for 180 days - must file I-140 within that time.

Changing employers during Green Card process is complex:

• Before I-140 approved: Must restart process with new employer
• After I-140 approved (180+ days): Can use AC21 portability to change employers
• New employer must file new PERM and I-140 (or just I-140 if using AC21)
• Priority date may be preserved in some cases

AC21 allows: Changing employers if I-140 approved 180+ days ago and I-485 pending 180+ days.

If employer withdraws Green Card petition:

• Before I-140 approved: Petition is terminated, must restart with new employer
• After I-140 approved: I-140 remains valid, but you may need new employer to continue
• If I-485 pending: May be able to use AC21 to change employers
• Priority date: May be preserved if I-140 was approved

What to do: Find new employer quickly, file new petition or use AC21, consult immigration attorney.

I-140 (Immigrant Petition for Alien Worker) is the second step in employment-based Green Card process:

• Filed after PERM approval (for EB-2/EB-3) or directly (for EB-1)
• Establishes your eligibility for Green Card category
• Establishes your priority date (your place in line)
• Processing time: 4-8 months (regular) or 15 days (premium)

After I-140 approval, you wait for priority date to become current before filing I-485.

Priority date is crucial for employment-based Green Cards:

• Definition: The date your I-140 petition was filed with USCIS
• Your place in line: Determines when you can file I-485 (adjustment of status)
• Visa Bulletin: Published monthly, shows which priority dates are "current"
• Must be current: Your priority date must be current before filing I-485

Additional Information:

• Priority date is "locked in" when I-140 is filed
• Even if I-140 is approved later, priority date stays the same
• Check Visa Bulletin monthly for your category and country
• India and China have long backlogs - priority dates move slowly
• Once current, you can file I-485 and get work permit and travel document

Yes, you can travel while I-140 is pending, but:

• Must maintain valid non-immigrant status (H-1B, L-1, etc.)
• Need valid visa stamp to re-enter
• Travel doesn't affect I-140 processing
• If I-140 approved while abroad, you can still use it

Important: I-140 approval doesn't give you travel authorization. You still need valid non-immigrant visa.

If I-140 is denied:

• You can file motion to reopen/reconsider (MTR) within 30 days
• Or appeal to Administrative Appeals Office (AAO)
• Or refile with corrected information
• Your H-1B status remains valid (if you have one)

Common denial reasons: Insufficient evidence, degree equivalency issues, employer ability to pay. Work with attorney to address concerns.