Concurrent Filing of I-140 and I-485 Information Sheet

August 13, 2002

INTRODUCTION

On July 31, 2002, the Immigration and Naturalization Service published an interim rule allowing for the concurrent filing of I-140 Visa Petitions and the I-485 Application for Adjustment of Status.

Prior to the issuance of this rule, a Permanent Resident applicant had to first file the I-140 Petition and wait for it to be approved before filing for adjustment of status. This has become particularly problematic as the processing times for I-140 applications have expanded substantially.

The filing of an Application for Adjustment of Status allows the applicant to also file for employment authorization and permission to travel in the form of advanced parole. By allowing the concurrent filing of I-140 and I-485 applications, the permanent resident applicants and their family members- can now obtain work authorization and advance parole in a much shorter period of time without having to wait for the I-140 to be approved. Additionally, the adjustment portability rule created by the American Competitiveness in the 21st Century Act (AC 21), which allows an adjustment applicant to change positions, geographic locations, or employers once the adjustment application has been pending for 6 months could attach at an earlier period of time.

WHO IS ELIGIBLE TO FILE UNDER THIS NEW RULE

Any individual who qualifies for permanent residence in the EB-1, EB-2, and EB-3 categories, is eligible to concurrently file the I-140 and I-485 Petition. In essence, only ministers (EB-4), investors (EB-5), and physicians working in shortage areas are ineligible to concurrently file the I-140 and I-485 applications.

WILL THIS SPEED UP THE ADJUDICATION PROCESS

The INS has indicated that the basis for allowing the concurrent filing of I-140 and I-485 applications is to increase efficiency. Since the rule is so new it is impossible to predict how long it will take to adjudicate the concurrently filed applications. It is the general expectation that the concurrent filing of these applications, rather than waiting to file the Adjustment Status application until after the I-140 has been approved, will reduce the overall processing time for obtaining permanent residence status. In some cases, however, it may be faster to obtain permanent residence status by pursuing consular processing after the I-140 has been approved rather than concurrently filing the I-140 and I-485 applications.

WHAT ARE THE MAJOR ADVANTAGES OF CONCURRENT FILING

Presumably, the concurrent filing of the I-140 and I-485 applications will speed up the overall time to process these applications. The interim rule will be particularly helpful to individuals whose H-1B, L-1A, or L-1B visas are expiring, particularly those people who have used up all of their non-immigrant visa eligibility. Applicants will be able to obtain work authorization and permission to travel (advanced parole) in connection with the I-485 application, without having to wait for the I-140 to be approved. Additionally, family members of the primary beneficiary can file Adjustment of Status applications concurrently with the primary beneficiary and therefore obtain work permission and permission to travel at a much earlier date.

WHAT ARE THE DISADVANTAGES OF CONCURRENT FILING

One possible disadvantage of concurrent filing is the potential for longer processing times as the INS implements this new procedure. Also, if the I-140 is ultimately denied, the individual will lose the costs and fees paid in connection with the Adjustment of Status application. In other words, the Immigration and Naturalization Service can only adjudicate the Adjustment of Status application once it approves the I-140 Petition. Should the Service deny the I-140 Petition, the applicant will forfeit the fees and costs paid in connection with the filing of the I-485 Adjustment application. If an individual relinquishes his or her non-immigrant status (H-1B, L-1A, L-1B, etc.) and the adjustment application is ultimately denied, it may be more difficult to reacquire lawful non-immigrant status.

Finally, if an adjustment applicant is intending to get married and then obtain immigration benefits for his or her spouse, that marriage must take place before the adjustment status application is approved, which, presumably, will occur in a shorter period of time.

CONCLUSION

The exact contours of this new rule, and its impact on permanent resident processing remain to be seen. Hopefully, a significant number of individuals will benefit from this new rule.