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Human Resources Corner

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. Doesnít it make sense for me to file both the petition and the adjustment application?

We do not yet know INSís 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 personís 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.