Important Information for Foreign Nationals:
Concurrent filings of I-140s and I-485s
On July 30, 2002, the INS issued a new rule, effective immediately, that
will allow foreign nationals to submit a form I-485 (adjustment of status
application) with an immigrant visa petition (Form I-140). The concurrent
filing will be allowed where an immigrant visa is immediately available
for the individual. The employment authorization and advance parole application
may also be filed with the adjustment of status application. INS hopes this
will improve the efficiency with which INS is able to provide benefits to
the applicants.
Individuals with an immigrant petition currently pending may now file
an adjustment of status application if a visa number is immediately available.
In the instance where the immigrant petition was filed and a visa number
was not immediately available at the time of filing, but a visa number is
now available, the adjustment of status application may be filed with a
copy of the receipt notice for the immigrant petition.
The rule, however, is lacking in clear guidance on many issues that may
affect permanent resident status. Some of the most common issues are addressed
below. However, please be advised that this FAQ is not a substitute for
legal advice, and that each case should be examined on its own merits.
Frequently Asked Questions on Concurrent Filings
Q: I am about to file an immigrant visa petition. Does it make sense
to file the I-140 with the adjustment of status?
It depends. For some people it will be advisable to file the I-140 with
the I-485. For others, however, it is not the best way to approach the case.
Where the immigrant petition is based on an approved labor certification,
it is generally assumed that the immigrant petition will be approvable,
i.e., that the intending immigrant can meet the minimum requirements
for the position. In such cases it may be a good idea to file the petition
with the adjustment. For an immigrant petition in the first preference (Outstanding
Researcher or Extraordinary Ability) or based on a second preference national
interest waiver, it may not be advisable in all cases to file the adjustment
application with the immigrant petition. Again, each case needs to be carefully
reviewed to decide whether it makes sense as a legal and practical matter
to file the adjustment application with the immigrant petition.
Q: I am concerned about my status with the company and want to file the
adjustment so I can get an EAD. Doesn’t it make sense for me to file both
the petition and the adjustment application?
We do not yet know INS’s timetable for issuing the EADs based upon the
adjustments filed pursuant to concurrent filing, so it may not yet make
sense to file the adjustment application simply to get an EAD. We do know
that one of the goals in publishing this rule was to be able to issue EADs,
so we presume that they will issue EADs on a timely basis, but it remains
to be seen.
Q: I am concerned about layoffs. Should I file the adjustment now so
I can move to a new employer after 180 days?
As a legal matter, portability to a new employer becomes an option for
an intending immigrant who has filed for adjustment, if the adjustment is
still pending after 180 days. Under this provision, a foreign national with
a pending adjustment application can move to a new employer if the application
has not been decided within 180 days of filing. In this case, the new employer
does not need to restart the lawful resident process if the new job is in
the same or similar occupation as the original job on which the I-140 was
based. However, the INS has not yet issued substantive guidance regarding
the portability provision, and applicants are advised to consider carefully
the effect of later-issued regulations or policy guidance upon already-filed
applications. In addition, if the underlying immigrant petition that is
filed concurrently is later denied, it is possible that the person’s status
in the United States will no longer be valid if porting took place and the
nonimmigrant work authorization and status were no longer considered to
be valid.
Q: If a Form I-140 Visa Petition was previously filed for me, but is
still pending with the INS, can I file Form I-485 now?
For those individuals with an immigrant petition currently pending, they
may now file an adjustment of status application if a visa number is immediately
available. The filing must include the receipt notice for the immigrant
petition to demonstrate that it was previously filed and received by INS.
Again, however, being able to do so does not mean that the applicant should
do so.
One factor to be considered in whether to file an amendment application
after filing the immigrant petition is the effect this rule may have on
visa numbers. It is possible that as a result of this rule, immigrant visa
numbers will retrogress: they are likely to be oversubscribed and visa numbers
may not remain immediately available. The rule provides that in the instance
where the immigrant petition was filed and a visa number was not immediately
available at the time of filing, but a visa number becomes available, the
adjustment of status application may be filed subsequently with a copy of
the receipt notice for the immigrant petition.
In some cases, however, where the I-140 has been pending for a number
of months, filing an adjustment application now could actually slow down
the process. It is important to confer with immigration counsel before filing.
Q: I would like to file the adjustment applications for my family also.
Can I do so?
The rule does not address filing for dependents of the employee-applicant,
thus raising the question how INS will contend with these derivative applications.
It is expected that INS will accept these applications at the time of the
filing of the adjustment application by the principal beneficiary, or subsequent
to it.
Q: I need to file under Section 245(i) of the INA. Does the rule permit
me to do a concurrent filing?
The rule does not address specifically whether an applicant who must
file under Section 245(i) can do so, but it would presumably be permitted.
Please note that Section 245(i) has very particular requirements, and cases
involving Section 245(i) must be reviewed by immigration counsel, as the
negative consequences of errors in handling these cases can be permanent.
A Section 245(i) applicant filing concurrently must file Supplement A along
with the I-485, and pay the additional $1,000 fee for each applicant aged
18 and over.
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