Concurrent Filings

On July 31, 2002, the INS promulgated an Interim Rule that will permit the concurrent filings of the Immigrant Petition (Form I-140) with an Adjustment of Status Application (Form I-485). This new rule is effective immediately. The concurrent filing will be allowed under most employment-based categories and in cases where an immigrant visa is immediately available for the beneficiary. Please note that this rule does not change the substantive requirements for I-140 petitions or I-485 applications.

Employment authorization and advance parole applications may be filed in conjunction with the adjustment of status application. Under Immigration and Naturalization Service (INS) regulations, an employment authorization application must be adjudicated within 90 days of receipt by the INS. The INS hopes that permitting concurrent filings will improve the efficiency with which the agency is able to provide benefits to these applicants.

Individuals who presently have an immigrant petition pending with the INS may now file an adjustment of status application, as long as they are within the applicable employment-based categories and a visa number is immediately available. The filing of the adjustment of status application must include the receipt notice for the immigrant petition to demonstrate that it was previously filed and received by the INS. Additionally, in cases where an 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.

Until the promulgation of this rule, an I-140 beneficiary was required to wait the three to five month period until adjudication by the INS of the I-140 petition, prior to being able to file for adjustment of status. The ability to file an adjustment of status application concurrently with the I-140 can be beneficial in that it enables the beneficiary to (1) obtain employment authorization within 90 days, (2) receive advance parole for travel outside the United States, (3) avoid unlawful presence in some circumstances, and (4) get a head start on the lengthy processing times for adjustment of status applications (they are currently taking between one and two years for processing).

For foreign nationals in deportation or removal proceedings before the Immigration Court, the fees are paid to and receipt obtained from the INS, and the I-485, along with the associated documents and proof of payment of fees, is filed with the Immigration Court. If the foreign national’s case is pending before the Board of Immigration Appeals, the I-485, along with the associated documents and proof of payment of fees, is filed with the Board of Immigration Appeals.

The preamble to the Interim Rule specifies, however, that the filing of the I-485, and required evidence, with the Immigration Court or the Board of Immigration Appeals does not stay (or suspend) the proceedings, nor is the filing considered a motion to reopen, motion to reconsider, or any other motion beyond a request to include the adjustment of status application in the file. Furthermore, accepting the I-485 application is not a reopening or reconsidering of the case, nor any other action pertaining to the case. In the event that the I-140 is approved, the beneficiary must affirmatively move the Immigration Court or the Board of Immigration Appeals to consider the adjustment application, or remand the application to the INS for adjudication (only if the INS agrees to such remand).

Several questions remain unanswered. First, the Interim Rule provides no specific guidance with respect to derivative beneficiaries (spouses and minor children of I-140 beneficiaries). Presumably, the INS will include spouses and minor children and permit them to file adjustment of status applications along with the principal beneficiary’s application. Nonetheless, we await INS clarification on this issue.

Second, pursuant to section 106(c) of the American Competitiveness in the 21^st Century Act (AC21), an individual for whom an I-485 has been pending for 180 days or longer may change jobs, and still obtain permanent resident status with the pending I-485, as long as the new job is in the same or similar classification as the job for which the petition was filed. The new Interim Rule provides no guidance regarding whether one can exercise this ability to change jobs after 180 days of a pending I-485 if the I-140 remains unadjudicated, or what happens if the I-140 is ultimately denied. We anticipate that additional INS guidance will be forthcoming on this issue.

Third, the rule does not address whether the adjustment of status application remains valid if the I-140 is denied, and a timely appeal or motion to reopen or reconsider has been filed with the INS, with respect to the denied I-140. Equity would seem to dictate that the foreign national should be permitted to pursue an appeal or reopening/reconsideration of a denied I-140 without losing the value of the I-485. This is particularly clear in situations in which the I-140 was denied erroneously.

Comments on this Interim Rule are due on or before September 30, 2002.

  Federal Register: Allowing in Certain Circumstances for the Filing of Form I–140 Visa Petition Concurrently With a Form I–485 Application (PDF/52 kb, 4 pages)

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