June 30, 2006

The End of Concurrent Filing?

At the American Immigration Lawyers Association conference in San Antonio last week, an announcement was made that the USCIS may discontinue a program that currently allows concurrent filing of the I-140 Immigrant Petition and I-485 Adjustment of Status application, the final steps in the permanent residence process. By way of background, upon approval of the labor certification application, the Immigrant Petition is filed by the employer with the USCIS. If the applicant's priority date is current, he or she is eligible to file the Adjustment of Status concurrently with the Immigrant petition. Concurrent filing has provided many benefits for applicants since its implementation in July 2002, including the ability to file a request for work authorization (EAD) and travel permission (Advance Parole). In the past, applicants had to wait for Immigrant Petition to be approved by USCIS before filing the Adjustment of Status. At most service centers, this meant waiting for 8 months up to two years.

The USCIS will implement premium processing (15 day expedited processing for a $1,000 fee) for Immigrant petitions in the near future and therefore, expects that most applicants will request premium processing. With shorter adjudications of Immigrant Petitions, USCIS has suggested that concurrent filing should no longer be necessary. This of course, is based on the USCIS' assumption that all applicants have the ability and resources to file premium processing. If they do not, they will have to wait for the Immigrant Petition to be decided to file the Adjustment of Status and could potentially miss important filing deadlines, particularly in light of the fact that the Department of State also expects further retrogression in many of the immigrant visa categories. This, coupled with the fact that the USCIS is still ironing out issues with its recent "bi-specialization" implementation could cause further delays in obtaining permanent residence status rather than the USCIS' anticipated result of adjudicating these cases within a 6 month time-frame.

Greenberg Traurig will provide further updates on the possibility of the elimination of concurrent filing as made available.