Guidance on I-140/I-485 Concurrent Filings

Previously, foreign nationals were required to obtain approval of the I-140 immigrant petition before applying for permanent residence by filing the I-485- adjustment of status application (AOS). On July 31, 2002, regulations were published which enabled foreign nationals to submit the Form I-140 and I-485 concurrently. This regulation continues to remain in effect.

Under §106(c) of American Competitiveness in the Twenty-First Century Act of 2002 (“AC21”), foreign nationals whose adjustment applications have been filed and remain un-adjudicated for 180 days or more remain valid if a change in the foreign national’s employment occurs, provided the new position is in a similar occupational classification as the job for which the underlying immigrant petition was filed. This has been a critical tool for many employees who previously had been forced to remain in positions during the extremely lengthy processing times of the AOS applications.

On August 4, 2003, William R. Yates, the Acting Associate Director for Operations of the U.S. Citizenship and Immigration Services (“CIS”) issued a memorandum providing guidance on concurrent I-140 and I-485 filings where the foreign national claims eligibility benefits under §106(c) of AC21.

The memorandum outlines the following scenarios for foreign nationals hoping to continue their adjustment of status application when there is a change in employment:

• If the foreign national of an approved Form I-140 is also the beneficiary of an adjustment of status application that has been pending for 180 days or longer, then the I-140 remains in effect with respect to a new offer of employment.

• If the adjustment application has been pending for 180 days but the Form I-140 is not yet approved within the 180 days, the employer can choose to withdraw the I-140, but it will still remain in effect as the Form I-485 has been pending for at least 180 days.

• If approval of the Form I-140 is revoked or the Form I-140 is withdrawn before the foreign national’s adjustment application has been pending for 180 days, the Form I-140 is not longer valid with respect to the new offer of employment and the adjustment of status application may be denied.

In all instances where the foreign national would like to continue his or her permanent resident application when there is a change in employment, the foreign national must provide proof to the USCIS of a new offer of employment and must prove that the new position is similar to the position in the underlying I-140 petition. The foreign national must submit evidence of the new qualifying offer of employment. If the foreign national has not submitted evidence of a new offer of employment, the adjudicating officer may issue a Notice of Intent to Deny the adjustment application. If the foreign national cannot provide evidence of a new qualifying offer of employment within the timeframe set forth to respond in the Notice of Intent to Deny, the adjustment application may be denied.

In all cases, the offer of employment must be a bona fide offer of employment and the employer must have the intent of hiring the foreign national upon approval of the adjustment of status application. Please note, however, that there is no requirement that the foreign national who is listed as the beneficiary on the Form I-140 actually be in the position offered. As such, it is possible that the foreign national can qualify for the provisions of §106(c) of the AC21 even if she has never been employed by the petitioning employer.

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