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A. 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 employerpetitioned
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, at an average around
6 months earlier than past. Although the portability rules have
not been construed yet 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. Further,
being out of states for 180 days or more results in a three-year
bar to reentering 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 filing application for Employment
Authorization at the time of filing I-485 and I-140. This will give
immediate benefits for the alien in many folds:
a. 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 the employment is in
consistent with the petition.
b. 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.
c. 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
can not get sponsorship for temporary working visa.
5. Advance Parole
Alien of family members 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 keep their independent status (H or L) but without a valid
visa on passport, they may apply for advance parole 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 reentry into the U.S.
B. Potential Legal Issues
The most obvious legal issue is "what happens if the I-140
is denied?" Our firm has filed well over a 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. Further, the I-485 is dependent
on 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. When an H-1B or L-1 holder
comes back to the US with an Advance Parole, he is in Parolee status. Though
he / she may work for his employer without the EAD during the duration of
his / her H-1b / L-1 approval, he / she is in I-485 pending. However, he /
she may change to H-1B / L-1 status in the US by applying H-1B or L-1. In
that case, it will bring him / her back into a valid non-immigrant status.
C. Conclusion
This rule is only an "interim" rule, and is currently
undergoing public comment for 60 days. Therefore, we are urging
all our clients to take advantage of this interim rule quickly,
as this provision may be rejected when the final rule is published
after the 60- day comment period. 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 independently
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 for you.
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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