Question 1

If I meet three of the eight O-1A criteria, will I be approved?

Matthew Kolodziej · Accepted Answer

Not necessarily. Meeting at least three criteria is the initial evidentiary threshold, not a guarantee of approval. USCIS also considers the quality and totality of the evidence to determine whether you have demonstrated the level of extraordinary ability and sustained national or international acclaim required for O-1A status. A petition can therefore satisfy three criteria and still receive a request for evidence or be denied.

In our review of O-1A cases, two recurring weaknesses are achievements concentrated in an earlier period without sufficient evidence of continued recognition or influence, and accomplishments that reflect success in the field but do not meaningfully distinguish the applicant from others in it.

Question 2

Can I reuse my O-1 evidence for an EB-1A petition?

Matthew Kolodziej · Accepted Answer

Yes — relevant awards, press coverage, recommendation letters, and other supporting documents from your O-1 case may also support an EB-1A petition. However, the evidence must be assessed and presented against the EB-1A criteria, with updates or additional documentation where needed.

USCIS evaluates the EB-1A petition independently, including whether the overall record demonstrates sustained national or international acclaim and that you are among the small percentage at the top of your field. A prior O-1 approval is relevant, but it does not guarantee EB-1A approval.

Question 3

Will filing an I-140 before applying for OPT or STEM OPT result in an RFE or denial of my OPT or STEM OPT application?

Joseph Hamel · Accepted Answer

Generally, no. Filing or obtaining approval of an I-140 does not, by itself, make an F-1 student ineligible for OPT or a STEM OPT extension, and there is no rule providing that an I-140 automatically results in a denial or Request for Evidence on Form I-765.

USCIS adjudicates OPT and STEM OPT based on the requirements applicable to the particular employment authorization category. For post-completion OPT, this includes maintaining F-1 status, obtaining the required DSO recommendation in SEVIS, and timely filing Form I-765. For a STEM OPT extension, additional requirements apply, including having a qualifying STEM degree, working for an E-Verify employer, and completing Form I-983. USCIS's Form I-765 instructions identify these requirements and do not make the absence of an immigrant petition a condition of OPT or STEM OPT eligibility.

That said, F-1 is not a dual-intent classification. An approved or pending I-140 can therefore become relevant in a different context, particularly if the student later applies for a new F-1 visa abroad or seeks admission to the United States in F-1 status. F-1 applicants must demonstrate a present intent to depart the United States after completing their authorized activities and maintain a foreign residence they do not intend to abandon. The State Department instructs consular officers to focus on the applicant's present intent, so the existence of an immigrant petition is relevant evidence but does not automatically disqualify someone from F-1 status.

So, as a practical matter, an employer may begin PERM and I-140 sponsorship while an employee is working in OPT or STEM OPT. The I-140 generally does not prevent the employee from obtaining or extending OPT employment authorization, but students who may need to renew an F-1 visa or travel internationally should evaluate the immigration-intent issue separately.

Question 4

What do I need to qualify for an E-2 investor visa?

Jason Jia · Accepted Answer

You generally must be a national of a qualifying treaty country, invest a substantial amount of capital in a real and operating U.S. business, and have control of the funds and the enterprise. The investment must be at risk and substantial in relation to the cost of the business, and the business cannot be marginal. You must also be coming to the United States to develop and direct the enterprise, typically through at least 50% ownership or another form of operational control.

E-2 is not limited to the investor. Certain employees of a treaty investor or qualifying enterprise may also qualify if they will serve in an executive or supervisory role, or possess special qualifications that make their services essential to the enterprise. An employee in this category must have the same nationality as the treaty investor or qualifying employer.

Spouses and unmarried children under 21 may accompany or follow the E-2 worker, and their nationalities do not need to match. Spouses in valid E-2 status are employment authorized incident to status and generally do not need to obtain a separate Employment Authorization Document (EAD); an unexpired Form I-94 reflecting E-2S classification is generally accepted as evidence of employment authorization.

E-2 is a nonimmigrant classification and can be renewed if the requirements continue to be met, but it does not by itself provide a direct path to permanent residence.

Question 5

Can my own company sponsor me for an O-1 visa?

Matthew Kolodziej · Accepted Answer

There is no self-petition for an O-1. The petition must be filed by a U.S. employer or a U.S. agent, not by the beneficiary. But a company you own can be the petitioner, and that is how many founders hold O-1 status.

What USCIS looks for is a genuine employer-beneficiary relationship rather than a company that exists only on paper. The company should be a real operating entity, and the petition should show that the petitioner has the right to control the terms and conditions of the beneficiary's employment. For beneficiary-owned companies, corporate governance, investor oversight, board authority, or other evidence of independent control may be important.

A single-member company where the beneficiary exercises complete control over the business can present additional challenges, so the structure is worth evaluating before the petition is filed.

The alternative is the agent route, where a U.S. agent files the petition on the beneficiary's behalf — see working for more than one employer.

Question 6

What are the eligibility criteria for an O-1B visa?

Matthew Kolodziej · Accepted Answer

O-1B covers the arts, as well as motion picture and television work. For the arts, the standard is distinction rather than the sustained acclaim required for O-1A. A petition may qualify through a significant national or international award or nomination in the field — such as an Oscar, Emmy, Grammy, or Directors Guild Award — or by satisfying at least three of the following six criteria:

A lead or starring role in productions or events with a distinguished reputation. National or international recognition for achievements, shown in critical reviews or other published material. A lead, starring or critical role for organizations with a distinguished reputation. A record of major commercial or critically acclaimed success. Significant recognition from critics, organizations, government agencies or other recognized experts. A high salary or other substantial remuneration for your services.

The applicable standard depends on the type of work involved. See "Which O-1B standard applies to my work?" below.

Question 7

The Visa Bulletin shows EB-3 ahead of EB-2 for my country of birth. Should I downgrade?

Joseph Hamel · Accepted Answer

Possibly, if your case is employer-sponsored through PERM and the advantage exists for your country of birth. Visa Bulletin eligibility is generally based on your country of birth, not your citizenship or where you live.

As of the October 2026 chart this applies to applicants born in mainland China: EB-3 sits ahead of EB-2, and USCIS is accepting employment-based adjustment applications (Form I-485) under the Dates for Filing chart. For most other chargeability areas EB-2 remains ahead of EB-3, so downgrading would move you backwards rather than forwards.

An EB-3 downgrade is a filing strategy, not an upgrade. It does not improve the case, change your priority date, or make USCIS decide it sooner. Because the dates change monthly, check the current bulletin before deciding — see how priority dates and the two charts work.

Question 8

Which applies to me — O-1, EB-1A or EB-2 NIW?

Matthew Kolodziej · Accepted Answer

Which one fits comes down to three things: whether you need status now or permanent residence, who is able to file for you, and where your country of birth sits in the Visa Bulletin. The O-1 is temporary and needs a petitioner. EB-1A and EB-2 NIW are permanent, and you can file either one yourself.

What it grants — O-1A: Temporary status, renewable; EB-1A: Permanent residence; EB-2 NIW: Permanent residence. Who files — O-1A: An employer or a U.S. agent; EB-1A: You; EB-2 NIW: You. The standard — O-1A: Sustained acclaim, at the top of the field; EB-1A: Sustained acclaim, then a final merits determination; EB-2 NIW: Substantial merit and national importance, and you well positioned to advance it. The evidence — O-1A: Three of eight criteria, then the record as a whole; EB-1A: Three of ten criteria, then the record as a whole; EB-2 NIW: The three prongs; no criteria count. Priority date — O-1A: None; EB-1A: EB-1, current for most but retrogressed for those born in China or India; EB-2 NIW: EB-2, generally further behind, and furthest for those born in China or India. Premium processing — O-1A: Available; EB-1A: Available on the I-140; EB-2 NIW: Available on the I-140.

For what each route asks of the evidence: the O-1 criteria, EB-1A from an O-1 record, the NIW self-petition.

Question 9

Can my I-485 be denied even though I meet the eligibility requirements?

Matthew Kolodziej · Accepted Answer

Yes. Adjustment of status is discretionary, which means meeting the statutory eligibility requirements does not by itself guarantee that USCIS will approve your I-485.

A May 2026 USCIS policy memorandum emphasized that officers should consider the totality of the circumstances when deciding whether an applicant warrants a favorable exercise of discretion. Factors may include:

Immigration history. Compliance with prior status. Unauthorized employment. Prior immigration violations. Representations made to immigration authorities.

The policy does not change the basic eligibility requirements for adjustment of status, but it signals greater attention to discretionary factors. Because its practical impact is still developing, applicants with potential negative factors should review them carefully with an immigration attorney.

Question 10

Does leaving the U.S. on advance parole trigger the unlawful presence bars?

Matthew Kolodziej · Accepted Answer

It can. Since the BIA’s August 13, 2026 decision in Matter of Delcarmen-Lara, travel on advance parole is treated as a departure for purposes of the unlawful presence bars, overturning the rule that had applied for more than a decade. If you previously accrued more than 180 days but less than one year of unlawful presence, departure may trigger the 3-year bar; one year or more may trigger the 10-year bar. The new rule applies prospectively. Anyone with a history of unlawful presence should have the risks evaluated before traveling on advance parole.

Question 11

I received a government notice saying I owe a huge civil fine. Is this real?

Alina Kaganovsky · Accepted Answer

It may be. DHS has issued substantial civil fines to certain individuals who allegedly failed to depart after a final removal order, with some penalties reaching $1,820,352. DHS reported issuing 65,101 civil fines totaling more than $36 billion between January 20, 2025 and March 18, 2026.

Do not assume a notice is a scam because of the amount, but do not simply pay or respond without reviewing it either. The legal basis for the fine, how it was calculated, whether the alleged violation was willful, and the available procedures for challenging it can all matter. Have an immigration attorney review the notice and its response deadline promptly.

Question 12

My application has been pending for years. Can I make USCIS decide it?

Alina Kaganovsky · Accepted Answer

Possibly. A federal lawsuit, often brought under the Mandamus Act and the Administrative Procedure Act, may be used to challenge an unreasonably delayed USCIS case and ask the court to require the agency to act. It does not ask the court to approve your application — it asks the court to require USCIS to make a decision. Whether a delay is legally unreasonable depends on the case type, length and reasons for the delay, the harm it is causing, and other case-specific factors.

Question 13

I read that a court struck down how USCIS decides EB-1A cases. What happened?

Matthew Kolodziej · Accepted Answer

You’re likely referring to Mukherji v. Miller. In January 2026, the U.S. District Court for the District of Nebraska vacated an EB-1A denial and ordered USCIS to approve the petition. The court held that USCIS’s two-step “final merits determination” framework had not been lawfully adopted through the rulemaking procedures required by the Administrative Procedure Act. It also rejected extra-regulatory requirements applied in that case, including the notion that the applicant had to remain indefinitely at the very top of the field or continually accumulate new achievements.

USCIS appealed the decision but withdrew its appeal in June 2026, leaving the district court’s ruling intact. The decision, however, did not create binding nationwide precedent and has not resulted in USCIS abandoning the final merits framework nationwide. For now, Mukherji is an important decision that applicants may cite in challenging certain final-merits reasoning, but it should not be read as a nationwide elimination of the final merits analysis.

Question 14

Can I get an EB-2 green card without an employer sponsor?

Matthew Kolodziej · Accepted Answer

Yes. The EB-2 National Interest Waiver is one pathway that allows qualified professionals to self-petition for a green card without employer sponsorship. Unlike a standard EB-2 case, an NIW can waive the job offer and labor certification requirements if you qualify for EB-2 and can show that your proposed work has substantial merit and national importance, that you are well positioned to advance it, and that waiving those requirements would benefit the United States.

This makes the NIW particularly relevant to researchers, founders, entrepreneurs and other professionals whose work may have broader impact beyond a single employer. The strength of the case often depends on how clearly that impact and your ability to advance the proposed work can be supported with evidence

Question 15

How much do I need to invest for an EB-5 green card?

Jason Jia · Accepted Answer

The current minimum investment is $800,000 if the investment is in a Targeted Employment Area or qualifying infrastructure project, and $1,050,000 otherwise. The investment must generally create at least 10 full-time jobs for qualifying U.S. workers.

These investment thresholds are scheduled to adjust for inflation on January 1, 2027, based on changes in the Consumer Price Index for All Urban Consumers (CPI-U), so the required amount may increase for petitions filed on or after that date. If the EB-5 process is successful, you first become a conditional permanent resident and later file Form I-829 to remove those conditions.

Targeted Employment Area or qualifying infrastructure project — Minimum: $800,000. All other investments — Minimum: $1,050,000.

Question 16

What does USCIS examine when my EB-5 investment is a gift from my parents?

Jason Jia · Accepted Answer

USCIS looks beyond the gift itself and examines where your parents lawfully obtained the funds and how the money ultimately reached the EB-5 investment. If the gift came from the sale of an asset, documenting the sale may not be enough — USCIS may also examine how your parents originally acquired that asset and the lawful source of the funds used to purchase it. We have reviewed a case where the investor’s petition was denied because the parents’ original purchase funds were not sufficiently documented and the later transactions created additional source-of-funds questions.

Question 17

My OPT expires before my H-1B start date. Can I keep working?

Jason Jia · Accepted Answer

Possibly. If your employer timely files a cap-subject H-1B petition requesting a change of status and you meet the cap-gap requirements, your F-1 status and, in qualifying cases, your employment authorization may be automatically extended while you wait for your H-1B status to begin. Under current rules, eligible cap-gap protection can extend as late as April 1 of the relevant fiscal year. Whether you can continue working depends on your OPT expiration date, when the H-1B petition was filed, and the status of the petition, so confirm your specific dates with your DSO and immigration counsel.

Question 18

My H-1B registration wasn't selected. What are my options now?

Joseph Hamel · Accepted Answer

If your H-1B registration was not selected, other options may include O-1 status for individuals who can demonstrate extraordinary ability, a STEM OPT extension if you qualify, or H-1B sponsorship through a cap-exempt employer. Depending on your circumstances, other work-authorized classifications may also be available, and employment-based green card sponsorship may be worth starting as a longer-term strategy. The key is to evaluate these options before your current status or work authorization expires.

O-1 — Who it fits: Individuals who can demonstrate extraordinary ability. STEM OPT — Who it fits: F-1 graduates in a qualifying STEM field. Cap-exempt H-1B — Who it fits: Universities, affiliated nonprofits, research organizations. E-3 — Who it fits: Australian nationals in a specialty occupation; separate annual quota, no lottery. H-1B1 — Who it fits: Singaporean and Chilean nationals in a specialty occupation; reserved annual numbers. TN — Who it fits: Canadian and Mexican citizens in a profession listed under the USMCA; no numerical cap.

Question 19

I have something in my history that might make me inadmissible. Is a waiver possible?

Alina Kaganovsky · Accepted Answer

Possibly. Waivers are available for some grounds of inadmissibility, but not all, and the requirements depend on the specific ground and your immigration situation. Some waivers require showing extreme hardship to a qualifying relative, while others depend on factors such as the nature of the conduct, rehabilitation or the time that has passed. The first step is identifying exactly which ground of inadmissibility applies and whether the law provides a waiver for it.

Question 20

Can my company transfer me from our foreign office to the U.S.?

Jason Jia · Accepted Answer

Yes, potentially. The L-1 visa allows multinational companies to transfer certain executives, managers and employees with specialized knowledge from a foreign office to a related U.S. entity. Unlike the H-1B, the L-1 is not subject to an annual cap lottery.

To qualify, there must be a qualifying corporate relationship between the foreign and U.S. entities, and you generally must have worked for the qualifying organization abroad for at least one continuous year within the preceding three years. Your role in the United States must also qualify as managerial, executive or specialized knowledge. Because of these requirements, both the company structure and your role are important to L-1 eligibility.

Question 21

I have a two-year green card through marriage. What do I file to make it permanent?

Alina Kaganovsky · Accepted Answer

You generally file Form I-751 to remove the conditions on a marriage-based green card. If you are still married and filing jointly, you normally file during the 90-day period before your conditional green card expires and provide evidence that the marriage was entered into in good faith. If the marriage has ended, or you cannot file jointly for another reason, you may still qualify to file with a waiver of the joint-filing requirement. The timing and evidence can be different in those cases, so they should be evaluated individually.

Question 22

What is a NOID, and how is it different from an RFE?

Matthew Kolodziej · Accepted Answer

An RFE means USCIS needs additional evidence before it can determine whether the case is approvable. A Notice of Intent to Deny, or NOID, is more serious: USCIS has identified grounds on which it intends to deny the case and is giving you an opportunity to respond before making a final decision. A NOID is not itself a denial or an appealable decision, but the response should address each stated concern directly with supporting evidence and explanation. The response deadline is stated on the notice and generally cannot be extended.

Question 23

What does it mean when my priority date is not current?

Matthew Kolodziej · Accepted Answer

If your priority date is not current, an immigrant visa number is not yet available for your category and country of chargeability. It does not mean there is a problem with your petition — it generally means you are waiting for visa availability.

The Visa Bulletin is updated monthly, and cut-off dates can move forward or backward. If the dates retrogress, you may have to wait longer to file or receive final approval. However, your priority date itself does not change and remains your place in line for visa availability.

Question 24

My school stopped processing CPT applications. Has CPT been cancelled?

Joseph Hamel · Accepted Answer

No. CPT has not been eliminated. SEVP issued new guidance on August 12 and August 24, 2026 that significantly narrowed how schools are being instructed to authorize CPT. Under the new guidance, CPT generally must be directly related to your major and required for all students in the program as part of the established curriculum. As schools review the new guidance, some have paused or restricted CPT applications that previously qualified based on academic credit but were not required for degree completion.

If you already have CPT authorization, check with your school before making any changes. Several universities have said previously authorized CPT can continue through its approved end date, but implementation may vary by school.

Question 25

Can USCIS deny my case without asking me for more evidence first?

Matthew Kolodziej · Accepted Answer

Yes — USCIS can deny certain cases without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Policy guidance effective August 5, 2026 restored officers’ discretion to deny requests missing required initial evidence without first asking for it, subject to applicable regulations and case-specific rules.

This does not mean every missing document will result in a denial, but you should not assume you will receive an opportunity to supplement the filing. Submit all required initial evidence and a well-supported case from the outset.

Question 26

What is an H-1B visa and who qualifies for one?

Joseph Hamel · Accepted Answer

An H-1B allows a U.S. employer to hire a foreign professional in a specialty occupation, generally a job requiring at least a bachelor’s degree in a directly related specific specialty or its equivalent. The worker must also have the degree, equivalent qualifications or other credentials required for the position. The employer petitions for the worker, so H-1B status is tied to approved employment. Most first-time H-1B petitions are subject to the annual cap and selection process, although certain employers and petitions are cap-exempt.

Question 27

Can I change employers while I'm on an H-1B?

Joseph Hamel · Accepted Answer

Yes — eligible H-1B workers can change employers under the H-1B portability rules. The new employer files its own petition, and you may generally begin working once that petition is properly filed with USCIS, or on the requested start date, whichever is later, without waiting for approval. If you have already been counted toward the H-1B cap, changing employers generally does not require entering the lottery again.

Timing matters. Leaving your current job before the new petition is filed does not automatically disqualify you, but it can make the applicable grace period and filing deadline critical. Before starting the new job, confirm that the petition has been properly filed, the requested start date has arrived, and you meet the H-1B portability requirements.

Question 28

My employer says my green card starts with PERM. What is that, and why does it take so long?

Matthew Kolodziej · Accepted Answer

PERM is the labor certification process required for most employer-sponsored EB-2 and EB-3 green card cases. The employer generally must obtain a prevailing wage determination, conduct a required recruitment process to test the U.S. labor market, and then file a labor certification application with the Department of Labor. PERM is not the same as the Labor Condition Application (LCA) filed in H-1B cases.

PERM can take a long time because several steps have their own required procedures and timing, followed by Department of Labor processing. If the PERM application is certified, the employer can generally move to the next stage by filing an I-140 immigrant petition with USCIS. The green card application follows when a visa number is available, and in some cases it can be filed together with the I-140.

Question 29

Our petition was approved. What do we have to keep doing as the employer?

Joseph Hamel · Accepted Answer

Approval does not end the employer’s immigration compliance responsibilities. Employers should continue to:

Follow the terms of the approved petition. Maintain required immigration and employment records. Complete and update Form I-9 when required. Monitor changes to the employee's role, work location, compensation or other employment conditions that could require additional immigration action.

For H-1B, L-1 and employment-based green card cases, it is also important to keep information about the employee’s position, duties and employment history accurate and consistent across future filings.

Frequently asked questions