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Q: I am about to file an immigration
petition under the NIW. Does this new rule mean that I may also
file my adjustment of status at the same time?
A: Yes, you may file your I-140 immigration petition and your I-485
application at the same time.
Q: Who is handling my case if I
retain Z&A?
A: Our attorneys handle their clients' cases individually by preparing
petition letters, contacting clients, and following up pending cases.
That's why we have more attorneys than clerks. Our clerks' main
objective is to help attorneys prepare clients' packages, and each
client's package will be reviewed by one of our most experienced
attorneys for final checking before sending out the package to the
USCIS.
Q: I filed my I-140 two months ago and it is still pending with
the USCIS. May I file my adjustment of status at this time?
A: Yes, you may file your I-485 adjustment of status application
immediately along with the Receipt Notice of the pending I-140 petition.
Q: If I take advantage of this new rule and decide to file the
I-140 and I-485 concurrently, may my spouse and children apply as
well?
A:Yes, your spouse and unmarried children under 21 years of
age may file the I-485 with with you at the same time.
Q: If I may my file my adjustment of status concurrently with
my I-140, may I also apply for advance parole and employment authorization?
A: Yes, you may also file for both advance parole and employment
authorization.
Q: In the above situation, will the USCIS issue me the advance
parole or employment authorization before they adjudicate my I-140?
A: Yes, the USCIS will issue the advance parole and employment authorization
before they adjudicate the I-140.
Q: How soon will the USCIS issue me the advance parole or employment
authorization?
A: It usually takes the USCIS about 3 months to issue the EAD and
the advance parole.
Q: If I file my adjustment of status with my I-140, may I later
choose to go through consular processing?
A: Yes, but you will need to withdraw your original I-485 adjustment
of status.
Q: In my I-140 that I filed two months ago, I marked on the
application form that I intend to go through consular processing.
May I still apply for adjustment of status at this time?
A: Yes, but you should file an amendment of your I-140 application
with the USCIS.
Q: I am in H-1b status and I am going to file for my I-485 and
I-140 concurrently. I am also applying for a work permit, but if
I change jobs in the future, should I apply for a new H-1B or should
I use the EAD to work?
A: It is better to appy for a new H-1B. If you change jobs and work
with the EAD rather than a new H-1B, you will go into adjustment
pending status and are no longer in H-1B status. Thus, if the adjustment
of status is ultimately denied, you may become out of status.
Q: I am in H-1b status and I am going to file for my I-485 and
I-140 concurrently. I am also applying for an advance parole to
return to re-enter the US after my trip abroad. Should I apply for
a new H-1B visa at the US consulate or should I use the advance
parole to re-enter the country?
A: It is better to appy for a new H-1B visa so that you may
re-enter the US under H-1B status. If you re-enter the US with the
advance parole rather than a new visa, you will go into adjustment
pending status and are no longer in H-1B status. Thus, if the adjustment
of status is ultimately denied, you may become out of status. On
the other hand, the advance parole is good "insurance"
to apply for just in case the US consulate does not issue you a
new H-1B visa. You may then re-enter the country with the advance
parole.
Q: I am in F-1 status and I am going to file for my I-485 and
I-140 concurrently. I am also applying for an advance parole. Should
I apply for a new F-1 visa at the US consulate or should I use the
advance parole to re-enter the country?
A: It is preferable to re-enter the US under an F-1 visa, but since
you have applied for the I-140 and I-485, you now have immigrant
intent. Thus, it is unlikely that the US consulate will issue you
a new F-1 visa. You will most likely have to use the advance parole
to re-enter the country.
Q: I am in F-1 status and the I-140 that I filed three months
ago is still pending. I am also about to apply for OPT. Should I
apply for OPT before or after I file for adjustment of status?
A: It would probably be better to apply for OPT before filing
your I-485.
Q: If I file for both the I-140 and the I-485 together, what
will happen to my adjustment of status application if the I-140
is denied?
A: Your adjustment of status will be denied.
Q: If I file for both the I-140 and the I-485 together, what
will happen to my status if the I-140 is denied?
A: If you kept your nonimmigrant status, you will remain in that
nonimmigrant status even if your I-140 is denied. However, if you
have gone into adjustment pending status, you will become out of
status if your I-140 is denied.
Q: Will I always be able to file the I-140 and I-485 concurrently?
A: This new rule is just an interim rule at this time. However,
there is a good possibilty that this rule will be extended.
Q: I am filing for NIW and I-485 now, but I don't want to apply
for the advance parole or EAD at this time. May I still apply for
them later?
A: Yes, you may apply for the advance parole and EAD at a later
time while your 1-485 application is pending.
Q: I applied for NIW in Texas three months ago but I have recently
moved to New York. The NIW is still pending, but I am interested
in applying for the I-485 now. May I do so?
A: You may file your I-485 if your visa number is available. You can check it from the Visa Bulletin published by DOS. However, since you are living in New York, you will have to file at the Texas Service Center (TSC).
Q: If I apply for the I-140 together with my I-485, will the
USCIS approve both of them together or will they approve the I-140
before they adjudicate the I-485?
A: The interim rule has not addressed this issue at this time. We
will keep our clients informed of any future developments.
Q: How much time will I be able to save by filing the I-140
and I-485 together?
A: We think it may save you anywhere from six months to a year.
Q: I applied for both NIW and Eb-1(b) Outstanding Researcher
petitions that are still currently pending. Does this mean that
I will have to apply for two adjustments of status?
A: Only one I-485 adjustment of status application will be enough.
Q: I applied for both NIW and Eb-1 (b) Outstanding Researcher
petitions that are still currently pending. If I base my adjustment
of status on the NIW and it is ultimately denied, will I have to
file a new adjustment application?
A: No, since the adjustment of status application is transferable.
Q: Is this new rule temporary?
A: Yes, it is an interim rule, but there is a good possibilty that
this rule will be extended.
Q: What will happen to my case if I file concurrently and this
new rule is ultimately changed?
A: Your filings will not be affected, even if the new rule is changed.
Q: I am applying for Outstanding Researcher and in order to
obtain my green card, I must remain with my petitioning employer
for 180 days after the filing of the I-485. If I file concurrently,
does this 180 days begin on the day I file my I-485 even though
my I-140 has not been adjudicated yet?
A: Yes.
Q: I am in J-1 status and am subject to the 2 year foreign residency
requirement. I haven't filed my foreign residency waiver yet. May
I still take advantage of this new rule?
A: No. Although you may still file your I-140 at this time, you
will need to obtain waiver of the foreign residency requirement
before you may file for the adjustment of status.
Q: I am in J-1 status and am subject to the 2-year foreign residency
requirement. I filed my foreign residency waiver with the State
Department but have not gotten it approved yet it by the USCIS. May
I still take advantage of this new rule?
A: Once you have received the approval from the State Department,
you may take advantage of this new law.
Q: If my I-140 immigration petition is denied, will the USCIS
refund my I-485 filing fees?
A: No, the filing fees are non-refundable.
Q: What are the risks of concurrent filing of I-140 and I-485?
A: The first risk is monetary. You will not be able to get a refund
for the I-485 filing fees from the USCIS if your I-140 is ultimately
denied. Secondly, you may become out of status if your I-140 application
is denied and you are in adjustment pending status. However, you
can alleviate this risk by choosing a reputable law firm experienced
in filing I-140 petitions. Our firm has filed well over eight hundred
I-140 petitions in EB-1 and EB-2 NIW, with an approval rate for
NIW petitions at 93%+ and for EB-1A&B petitions at 98%+.
Q: Is there anything I can do to help this rule be finalized?
A: The new rule is an interim one and is under public scrutiny.
Since the enforcement of the new rule will eliminate the delay of
the adjustment of status application and make the immigration visa
application process more efficient, both the USCIS and the applicants
will benefit from it. In addition, it will reduce the likelihood
that applicants will be out of status. Therefore, we strongly encourage
our clients to support this new rule and write positive comments
to the USCIS.
Q: How long is the USCIS accepting public comments?
A: Written comments regarding the new interim rule must be submitted
on or before September 30, 2002.
Q: How can I reach the USCIS to express my concerns regarding
the new rule?
A: 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. You may also
submit comments electronically to the USCIS at insregs@usdoj.gov.
To ensure proper handing, please reference USCIS No. 2104-00 on your
correspondence.
For more information on Concurrent Filing
of I-140 and I-485, please click one of the following topics:
Description
Z&A's memo
Age-Out: The Interplay of Concurrent
Filing and "Child Status Protection Act"
Frequently Asked Questions about I-40 and I-485
Services that We Provide
Attorney's Fees
Articles & News on I-140 and I-485
Memo: Be Aware of Abandonment of COS and AOS Applications
The Impact of I-140/I-485 Filing on F-1 Students
The Issues Related to I-140/I-485 Filing for H-1B Holders
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