Z&A's Opinions and Comments on Concurrent Filing of I-140 and I-485 Rule
(Update: At the time this memo was written, visa numbers were consistently available to the EB-1, EB-2, and EB-3 categories. This is no longer the case. Chinese and Indian beneficiaries of EB-2 petitions now have backlogs in visa availability of 5-7 years. The EB-3 category has a backlog of 6-10 years. So while the issues raised in this memo speak to the literal and regulatory effects of USCIS’s concurrent filing rule, in practical sense many EB-2 and nearly all EB-3 petitioners will not be able to take advantage of concurrent filing.)

There has been a new and exciting development in immigration law that affects many aliens. Effective July 31, 2002, the USCIS published a long-awaited rule allowing the concurrent filing of an I-485 adjustment of status application with an I-140 immigration petition (EB-1, EB-2, and EB-3). In the past, the USCIS required an approval of the I-140 petition before it would allow a beneficiary to apply for permanent resident status.

The only restriction is that the visa number must be immediately available for the category in order to file the I-485 application. Since visa numbers are available to all EB-1, EB-2 and EB-3 categories, any person who is a beneficiary (or applicant) of an I-140 petition which has already been filed is now eligible to file an I-485 application. Family members will be eligible to file I-485 along with the principal alien. Additionally, applications for Employment Authorization (EAD) and Advance Parole may be filed with the I-485 application.

For all pending I-140 petitions, the beneficiary (or applicant) may file his or her I-485 adjustment of status application immediately by submitting the Receipt Notice of the pending I-140 with the I-485 application.

The new rule offers tremendous benefits to the aliens who are applying for green card through employment-based petitions.

Benefits of the New Rule

1. Increased Efficiency for the USCIS

The USCIS is implementing this new rule in order to improve both efficiency and customer service, and to eliminate the delay of the adjustment of status processing. As noted above, previously aliens applying for their "green cards" in the categories of EB-1, EB-2 and EB-3 could not file I-485 adjustment of status applications until the I-140 was approved. This caused at least an average delay of 6 month in adjudicating the adjustment of status application, already a long process. This new rule means that applicants for adjustment of status will benefit from a smooth, expedited process, and should receive their permanent resident status earlier than they otherwise would.

2. AC21 Portability

For all those aliens who are beneficiaries (or applicants) of employer petitioned I-140s, namely, EB-1b(Outstanding Researcher or Professor), EB-2 (except NIW) and all EB-3, current immigration law allows them to change employers 180 days after the DATE of filing of I-485 adjustment of status. Permitting concurrent filing of the I-485 should allow those persons to change jobs, if they wish, around 6 months earlier than in the past. Although the portability rules have not been construed with the new rule on concurrent filing, the plain language of the portability regulations permits this new and beneficial result.

3. Reducing the Unlawful Presence Risk

As a general rule, an alien who has been out of status (unlawfully present in the U.S.) for 180 days is not eligible for adjustment of status under an employment-based immigration petition. Furthermore, being out of status for 180 days or more, results in a three-year bar to re-entering the United States. If an alien loses non-immigrant status while the I-140 is pending, the alien may not be eligible for I-485 adjustment. As just one example, H-1B status is dependent on continuing to work for the sponsoring employer. As we have seen during the recent economic downturn, if an H-1B employee is laid off, their status immediately terminates as of the day of the layoff (not even as of the last pay date of the severance package). Filing an I-485 application will immediately offer the alien legal status during the entire time the application is pending with the USCIS. Therefore, filing the I-485 concurrently with the I-140 will immediately offer the alien a way to avoid the unlawful presence risk.

4. Employment Authorization

An alien is now also allowed to file an application for Employment Authorization concurrently with the filing of the I-485 and I-140, which will give the alien immediate benefits in many folds:

  1. If the Alien is an I-140 self-petitioner (EB-1(a) and EB-2 NIW), upon the receipt of the employment authorization, the Alien may choose any employer he or she wishes so long as the employment is  consistent with the petition.

  2. If the Alien is an employer-sponsored I-140 beneficiary (EB-1(b), EB-2 (except NIW) and EB-3), the-alien may using the EAD to seek other employment after 180 days from the filing of I-485.

  3. Family members are allowed to file applications for Employment Authorization (EAD) at the same time, which is extremely important for those family members who are ready to accept employment but cannot get sponsorship for a temporary working visa.

5. Advance Parole

Aliens who are filing I-485 according with the new rule can also file applications for Advance Parole. Advance Parole allows the alien to travel outside the United State and return with a parolee status while the I-485 is still pending. For those who wish to keep their independent status (H or L) but without a valid visa on their passport, they may apply for and receive an advance parole document as a safeguard for their return in the event that their visa application (for H or L) at the U.S. consulate abroad is denied. Normally, such a denial would bar their re-entry into the U.S.

Potential Legal Issues

The most obvious legal issue is "what happens if the I-140 is denied?" Our firm has filed well over eight hundred I-140 petitions in EB-1 and EB-2 NIW, and, for example, our approval rate for NIW petitions is 93%+ and for EB-1A&B petitions is 98%+. That being said, concurrent filing of the I-485 with the I-140 does not guarantee the approval of the I-140. Furthermore, the I-485 is dependent upon the approval of the I-140. If a person solely relies on I-485 pending status, and the I-140 is denied, the alien may be out of status. Therefore, it is strongly recommended that aliens should try to keep their independent status, such as H and L, as long as possible while at the same time filing their I-485. In addition, readmission into the U.S. by using Advance Parole causes the loss of non-immigrant status, and one who enters as an I-485 pending parolee is fully dependent on the approval of the I-485. Moreover, by using the employment authorization benefit from the I-485 pending status, an alien may lose non-immigrant status.

Conclusion

Allowing concurrent filing of the I-485 with the I-140 offers a great benefit to aliens in the green card application process. Filing an I-485 adjustment of status application will not jeopardize alien's temporary working status such as H and L, but gives benefits such as taking full advantage of the "Portability Rule," employment authorization for family members, advance parole benefits, and reducing the risk of losing status as a result of an economic downturn. To safeguard the status, we recommend that aliens should keep H or L independent status as long as possible while taking advantage of the concurrently filing rule. However, you should discuss the particulars of your case with an attorney before you go forward to fully understand the benefits, as well as any risks, that may be involved.

(Updated 10/9/2012 by AD)

For more information aboutConcurrent Filing of I-140 and I-485, please click one of the following topics: