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U.S. Citizenship & Immigration Services (USCIS) announces a new interim rule
which allows the filing of Form I-140 Petition concurrently with Form I-485 Application.
This interim rule is effective immediately today, July 31, 2002.
The current
USCIS regulations provide that an alien worker who wants to apply for permanent
residence by filing the appropriate Form I-485, Application to Register Permanent
Residence or Adjust Status, cannot do so until he or she obtains approval of the
underlying petition, Form I-140, Immigrant Petition for Alien Worker. This procedure
has resulted in an unnecessary delay for certain alien workers. This interim rule
amends the USCIS regulations by allowing the Form I-485 to be filed concurrently
when a visa is immediately available, thereby improving the efficiency of the
process as well as customer service. This interim rule also provides that, if
an employment-based visa petition is pending on the date of publication in the
Federal Register, the alien beneficiary may obtain the benefits of concurrent
filing, but only if the alien beneficiary files the Form I-485, together with
the applicable fee and a copy of their Form I-797, Notice of Action, establishing
previous receipt and acceptance by the USCIS of the underlying Form I-140 petition.
Further this interim rule will allow the alien worker to apply for employment
authorization (work permit) using Form I-765, Application for Employment Authorization,
and for advance parole authorization using Form I-131, Application for Travel
Document, while the Form I-485 is pending. The USCIS will collect public comments
on this interim rule within 60 days after it is published in the Federal Register. Please
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The following is the document in its entirety in HTML format: [Federal
Register: July 31, 2002 (Volume 67, Number 147)]
[Rules and Regulations]
[Page
49561-49564]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy02-1]
=========================================================
Rules
and Regulations
Federal Register
________________________________________________________________________
This
section of the FEDERAL REGISTER contains regulatory documents
having general
applicability and legal effect, most of which are keyed
to and codified in
the Code of Federal Regulations, which is published
under 50 titles pursuant
to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent
of Documents.
Prices of new books are listed in the first FEDERAL REGISTER
issue of each
week. ============================================================== [[Page
49561]] DEPARTMENT OF JUSTICE Immigration and Naturalization
Service 8 CFR Parts 204, 245 and 299 [USCIS No. 2104-00]
RIN 1115-AGOO
Allowing in Certain Circumstances for the Filing of Form I-140
Visa Petition
Concurrently With a Form I-485 Application AGENCY: Immigration and Naturalization
Service, Justice. ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY:
The current Immigration and Naturalization Service (Service)
regulations provide
that an alien worker who wants to apply for
permanent resident by filing the
appropriate Form I-485, Application to
Register Permanent Residence or Adjust
Status, cannot do so until he or
she obtains approval of the underlying petition,
Form I-140, Immigrant
Petition for Alien Worker. This procedure has resulted
in an
unnecessary delay for certain alien workers. This interim rule amends
the Service's regulations by allowing the Form I-485 to be filed
concurrently
when a visa is immediately available, thereby improving
the efficiency of
the process as well as customer service. This interim
rule also provides that,
if an employment-based visa petition is
pending on July 31, 2002, the alien
beneficiary may obtain the benefits
of concurrent filing, but only if the
alien beneficiary files the Form
I-485, together with the applicable fee and
a copy of their Form I-797,
Notice of Action, establishing previous receipt
and acceptance by the
Service of the underlying Form I-140 visa petition.
Further, this
interim rule will allow the alien worker to apply for employment
authorization using Form I-765, Application for Employment
Authorization,
and for advance parole authorization using Form I-131,
Application for Travel
Document, while the Form I-485 is pending. DATES: Effective date: This interim
rule is effective July 31, 2002.
Comment date: Written comments must be submitted
on or before
September 30, 2002. ADDRESSES: Please submit written comments
to the Director, Policy
Directives and Instructions Branch, Immigration and
Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC 20536.
To ensure
proper handling, please reference USCIS No. 2104-00 on your
correspondence.
You may also submit comments electronically to the
Service at insregs@usdoj.gov.
When submitting comments electronically
please include the USCIS No. 2104-00
in the subject box. Comments are
available for public inspection at the above
address by calling (202)
514-3291 to arrange for an appointment. FOR
FURTHER INFORMATION CONTACT: Morrie Berez, Assistant Director,
Business and
Trade Services Branch, Immigration and Naturalization
Service, 425 I Street
NW., Room 3214, Washington, DC 20536, telephone
(202) 353-8177. SUPPLEMENTARY
INFORMATION: Why Is the Service Issuing This Rule? This interim rule
is necessary to improve both efficiency and
customer service, and to support
the Service's long-established goals
for filing of petitions and applications
via direct mail. Current
regulations at Sec. 204.5(n), Sec. 245.1(g) and Sec.
245.2(a)(2) state
that an alien can only submit Form I-485 after the alien
has had his or
her underlying visa petition, Form I-140, approved, and when
an
immigrant visa is immediately available. Due to these requirements
there
has been a delay from the time the Form I-140 is filed with the
Service until
the alien worker, for whom a visa is otherwise
immediately available, can
properly file Form I-485 with the Service.
The most practical and efficient
way to eliminate this dalay is to
permit concurrent filing of Form I-485 together
with Form I-140 in
cases in which a visa is immediately available. Concurrent
filing
eliminates the dalay that takes place between approval of Form I-140
and the subsequent filing of Form I-485. This interim rule provides for
such
concurrent filing. Does This Interim Rule Change or Amend the Substantive
Eligibility
Requirements for the Visa Petition or Permanent Residence Applications?
No, this interim rule does not change the current substantive
requirements
governing eligibility for and adjudication of the Form I-
140 nor for the Form
I-485. Who Is Eligible To File Forms I-140 and I-485 Concurrently?
Forms I-140 and I-485 may be filed concurrently only when an
immigrant visa
number is immediately available. This interim rule does
not change the existing
requirement that a visa number must be
immediately available before an alien
can apply for permanent resident
status. This interim rule simply applies
to aliens who are classifiable
under sections 203(b)(1), (2), and (3), of
the Immigration and
Nationality Act, allowing them to file the Forms I-140
and I-485 at the
same time, but only when a visa is immediately available. If
a Form I-140 Visa Petition Previously Filed for an Alien Worker Is
Still Pending
With the Service on or After the Date This Rule Is
Published, and a Visa Number
Is Immediately Available, Can the Alien
File Form I-485? Yes, upon
issuance of this rule, an alien whose Form I-140 visa
petition is pending
with the Service may file Form I-485, together with
associated forms and fees,
with the Service office at which the visa
petition was filed. When filing
Form I-485, the alien will be required
to attach a copy of the Form I-797,
Notice of Action, establishing
previous receipt and acceptance by the Service
of the underlying Form
I-140 visa petition. When an immigrant visa is immediately
available,
Form I-485 may be filed either concurrently with the Form I-140
or
anytime thereafter. If a Visa Number Was Not Immediately Available
at the Time a Form I-140
Visa Petition Was Filed, and Then a Visa Number Becomes
Available, Can
the Alien File Form I-485? Yes, upon issuance of this
rule, if a visa number becomes
immediately available since filing of the underlying
Form I-140, the
alien may tehn file [[Page 49562]] Form I-485,
together with associated forms and appropriate fees, with
the Service office
at which the visa petition was filed. When filing
Form I-485, the alien will
be required to attach a copy of the Form I-
797, Notice of Action, establishing
previous receipt and acceptance by
the Service of the underlying Form I-140
visa petition. If the Alien Is in Deportation or Removal Proceedings, Does
the Alien
File the Form I-485 Under This Section With the Service or With
the
Immigration Court or Board of Immigration Appeals (Board)? For
aliens in deportation or removal proceedings, 8 CFR 245.2(a)(2)
establishes
``applications shall be made and considered only in those
proceedings.'' If
the alien is before the Immigration Court, the Form
I-485, associated documents
and proof of payment of the fees must be
filed with the Immigration Court.
If the alien has an appeal pending
before the Board, the Form I-485, associated
documents and proof of
payment of the fees must be filed with the Board. The
fees must first
be paid to, and receipt obtained from, the Service. If
the Alien Files the Form I-485 and Associated Documents With the
Immigration
Court or the Board After Paying the Proper Fees to the
Service, Does Such
a Filing Stop or Stay Deportation or Removal
Proceedings? No. The filing
of an adjustment action where the underlying visa
petition is not current
does not by itself stop or stay (suspend) the
proceedings. The Board will
only accept the filing of the Form I-485
for placement into the Record of
Proceedings (ROP). This filing is not
a motion to reopen, motion to reconsider,
or any other motion beyond a
request to include the adjustment application
in the file. Furthermore,
accepting the application and placing it in the
ROP is not a reopening
or reconsidering of the case, nor any other action
pertaining to the
case. If the underlying petition for the alien is approved
and a visa
is or becomes immediately available, the alien must affirmatively
move
the Immigration Court or the Board of Immigration Appeals to consider
the application for adjudication, or remand the application to the
Service
for adjudication if the Service concurs in the remand. Besides Eliminating
the Delay for Filing Form I-485, How Else Will
These Regulatory Amendments
Benefit Aliens? These amendments will allow the Service to issue Employment
Authorization Documentation (EAD) and advance parole authorization
(which
allows the alien to travel outside of the United States
temporarily while
his or her Form I-485 is pending with the Service) to
certain alien workers
within substantially less time than at present.
In being able to apply for
employment authorization and advance parole,
the alien may avoid the adverse
consequences of accrual of unlawful
presence. To achieve the desired efficiency
improvement in the
Service's processing, only aliens who have filed a Form
I-140 for which
a visa number is immediately available and Form I-485 will
qualify for
these benefits. Therefore, as a result of this interim rule, an
eligible beneficiary of a Form I-140 visa petition for whom a visa is
immediately
available will no longer need to wait for approval of the
underlying Form
I-140 before eligible to apply for these benefits. How Does This Interim
Rule Affect the September 6, 2000, Interim Rule
Relating to National Interest
Job Offer Waivers for Physicians? On September 6, 2000, the Service published
in the Federal Register
at 64 FR 53889 an interim rule relating to national
interest job offer
waivers for physicians. Under 8 CFR 245.18(f) of that interim
rule,
when a physician files for adjustment of status the Service is required
to give a physician notice of specific requirements relating to the
adjustment
of the physician's status. This interim rule concerning
concurrent filing
of Forms I-140 and I-485 requires one conforming
amendment to 8 CFR 245.18(f).
If the physician filed the Form I-485
concurrently with the Form I-140, the
Service will give the required
notice upon approval of the Form I-140, rather
than upon receipt of the
Form I-485. If the physician waits to subsequently
file the Form I-485
while the previously filed Form I-140 is still pending,
then the
Service will give the required notice upon approval of the Form I-140.
If the physician files the Form I-485 after the Form I-140 is approved,
then
the Service will give the required notice upon receipt of the Form
I-485. Good
Cause Exception The Service's implementation of this rule as an interim
rule, with
provision for post-promulgation public comment, is based upon the
``good cause'' exception found at 5 U.S.C. 553(b)(B) and (d)(1). This
rule
relieves the current restriction that bars the filing of an
application for
permanent residence (Form I-485) until after the
underlying visa petition
(Form I-140) has been approved. This rule is
intended to provide efficiency
and fairness to applicants. It is
therefore impractical, unnecessary, and
contrary to the public interest
to publish this rule with the prior notice
and comment period normally
required under 5 U.S.C. 553(b). Regulatory
Flexibility Act The Commissioner of the Immigration and Naturalization
Service, in
accordance with 5 U.S.C. 605(b), has reviewed this interim rule
and, by
approving it, certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This rule is
intended
to expedite alien worker authorization while the alien's
permanent status
application (Form I-485) is pending. This rule affects
individual aliens,
not small entities as that term is defined in 5
U.S.C. 601(6). Unfunded
Mandates Reform Act of 1995 This rule will not result in the expenditure
by State, local and
tribal governments, in the aggregate, or by the private
sector, of $100
million or more in any one-year, and it will not significantly
or
uniquely affect small governments. Therefore, no actions were deemed
necessary
under the provisions of the Unfunded Mandates Reform Act of
1995. Small
Business Regulatory Enforcement Fairness Act of 1996 This rule is not a
major rule as defined by section 804 of the
Small Business Regulatory Enforcement
Act of 1996. This rule will not
result in an annual effect on the economy
of $100 million or more; a
major increase in costs or prices; or significant
adverse effects on
competition, employment, investment, productivity, innovation,
or on
the ability of United States-based companies to compete with foreign-
based
companies in domestic and export markets. Executive Order 12866 This
rule is not considered by the Department of Justice,
Immigration and Naturalization
Service, to be ``significant regulatory
action'' under Executive Order 12866,
section 3(f), Regulatory Planning
and Review, and the Office of Management
and Budget has waived its
review process under section 6(a)(3)(A). Executive
Order 13132 This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on
the [[Page 49563]] distribution of power and responsibilities among
the various levels of
government. Therefore, in accordance with section 6
of Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary
impact statement. Executive Order 12988 Civil Justice Reform This
rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2)
of Executive Order 12988. Paperwork Reduction Act The information
collection requirement (Form I-140) contained in
this rule has been approved
for use by the Office of Management and
Budget (OMB) under the Paperwork Reduction
Act. The OMB control number
for this information collection is contain in
8 CFR 299.5, Display of
control numbers. List of Subjects 8 CFR
Part 204 Administrative practice and Procedures, Immigration, Reporting
and
recordkeeping requirements. 8 CFR Part 245 Aliens, Immigration,
Reporting and recordkeeping requirements. 8 CFR Part 299 Immigration,
Reporting and recordkeeping requirements.
Accordingly, chapter I of
title 8 of the Code of Federal
Regulations is amended as follows:
PART
204--IMMIGRANT PETITIONS 1. The authority citation for part 204 continues
to read as
follows: Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154,
1182, 1186a,
1255, 1641; 8 CFR part 2.
2. Section 204.5 is amended
by revising paragraph (n)(1) to read as
follows:
Sec. 204.5 Petitions
for employment-based immigrants.
* * * * *
(n) * * *
(1) Approval.
An approved employment-based petition will be
forwarded to the National Visa
Center of the Department of State if the
beneficiary resides outside of the
United States. If the Form I-140
petition indicates that the alien has filed
or will file an application
for adjustment to permanent residence in the United
States (Form I-485)
the approved visa petition (Form I-140), will be retained
by the
Service for consideration with the application for permanent residence
(Form I-485). If a visa is available, and Form I-485 has not been
filed,
the alien will be instructed on the Form I-797, Notice of
Action, (mailed
out upon approval of the Form I-140 petition) to file
the Form I-485. PART
245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
3. The authority citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111
Stat. 2160, 2193; sec. 902. Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
4. Section 245.1 is amended by revising the third sentence in
paragraph (g)(1)
to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(g)
* * *
(1) * * * An immigrant visa is considered available for accepting
and
processing the application Form I-485 is the preference category
applicant
has a priority date on the waiting list which is earlier than
the date shown
in the Bulletin (or the Bulletin shows that numbers for
visa applicants in
his or her category are current). * * *
* * * * *
5. Section 245.2 is amended
by revising paragraph (a)(2)(i), to
read as follows:
Sec. 245. Application.
(a) * * *
(2) * * *
(i) Under section 245. (A) An immigrant visa must
be immediately
available in order for an alien to properly file an adjustment
application under section 245 of the Act See Sec. 245.1(g)(1) to
determine
whether an immigrant visa is immediately available.
(B) If, at the time of
filing, approval of a visa petition filed
for classification under section
201(b)(2)(A)(i), section 203(a) or
section 203(b)(1), (2) or (3) of the Act
would make a visa immediately
available to the alien beneficiary, the alien
beneficiary's adjustment
application will be considered properly filed whether
submitted
concurrently with or subsequent to the visa petition, provided that
it
meets the filing requirements contained in parts 103 and 245. For any
other
classification, the alien beneficiary may file the adjustment
application
only after the Service has approved the visa petition.
(C) A visa petition
and an adjustment application are concurrently
filed only if:
(1) The
visa petitioner and adjustment applicant each file their
respective form at
the same time, bundled together within a single
mailer or delivery packet,
with the proper filing fees on the same day
and at the same Service office,
or;
(2) the visa petitioner filed the visa petition, for which a visa
number
has become immediately available, on, before or after July 31,
2002, and the
adjustment applicant files the adjustment application,
together with the proper
filing fee and a copy of the Form I-797,
Notice of Action, establishing the
receipt and acceptance by the
Service of the underlying Form I-140 visa petition,
at the same Service
office at which the visa petitioner filed the visa petition,
or;
(3) The visa petitioner filed the visa petition, for which a visa
number
has become immediately available, on, before, or after July 31,
2002, and
the adjustment applicant files the adjustment application,
together with proof
of payment of the filing fee with the Service and a
copy of the Form I-797
Notice of Action establishing the receipt and
acceptance by the Service of
the underlying Form I-140 visa petition,
with the Immigration Court or the
Board of Immigration Appeals when
jurisdiction lies under paragraph (a)(1)
of this section.
* * * * * 6. Section 245.18 is amended by revising
paragraph (f) introductory
text to read as follows:
Sec. 245.18
How can physicians (with approved Forms I-140) that are
serving in medically
underserved areas or at a Veterans Affairs
facility adjust status?
*
* * * *
(f) Will the Service provide information to the physician about
evidence
and supplemental filings? The Service shall provide the
physician with the
information and the projected timetables for
completing the adjustment process,
as described in this paragraph. If
the physician either files the Form I-485
concurrently with or waits to
subsequently file the Form I-485 while the previously
filed Form I-140
is still pending, then the Service will given this information
upon
approval of the Form I-140. If the physician does not file the
adjustment
application until after approval of the Form I-140 visa
petition, the Service
shall provide this information upon receipt of
the Form I-485 adjustment application.
*
* * * * [[Page 49564]] PART 299--IMMIGRATION FORMS 7. The authority
citation for part 299 continues to read as
follows: Authority: 8 U.S.C.
1101, 1103; 8 CFR part 2.
8. Section 299.1 is amended in the table
by revising the entry for
Form I-140, to read as follows:
Sec. 299.1
Prescribed forms.
* * * * * ------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-140....................... 08-30-01 Immigrant Petition for Alien
Worker. * * * * *
------------------------------------------------------------------------
Dated: July 5, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization
Service.
[FR Doc. 02-19249 Filed 7-30-02; 8:45 am]
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