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New Adjudication Procedures for Concurrent Filing of I-140 and I-485 Applications In an interoffice memorandum launched recently from Fujie Ohata, Director of Service Center Operations, the U.S. Citizenship and Immigration Services (USCIS) establishes special adjudication procedures for concurrently filed I-140s and I-485s in employment-based immigrant visa petitions. Previously, a 2002 Interim Regulation authorizes the concurrent filing of I-140 immigrant visa petitions and I-485 applications for adjustment of status when a visa is immediately available. Concerns have been raised, however, in regard to the confusions and inconsistence in I-140 and I-485 concurrent filing adjudication procedures in and between service centers. The Fujie Ohata Memo intends to provide specific instructions and guidance to service center directors on the adjudication and reporting of processing times of concurrently filed I-140 and I-485s. According to the memorandum, a concurrently filed I-140 and I-485 will be concurrently adjudicated. For purposes of measuring and reporting local processing time for these forms, the local I-140 processing time will control. A concurrently filed I-485 will no longer be tracked based upon the local I-485 processing time. Concurrently filed Forms I-140 and I-485 is to be considered a separate workload from current standalone Forms I-485. Additionally, concurrently filed I-140 and I-485 will be processed based upon the I-140 receipt date. However, when a concurrently filed application/petition package is on the Just in Time shelf and ready for adjudication, only those concurrently filed application/petition packages in which the I-485 is adjudication ready (fingerprints and name checks have cleared) will be pulled and sent to adjudication. If a concurrently filed I-140 requires an RFE, the I-485 should be reviewed as well. If the I-485 requires an RFE, a separate RFE should be issued. Due to potential legal conflicts, an I-140 RFE and I-485 RFE cannot be combined into one document. However, in the event that both the I-140 and the I-485 have a G-28 in the records and the representative is the same, the RFEs can be mailed together to the attorney or accredited representative of record. The concurrent filing application and petition package will be housed together on the I-103 shelf. If an I-140 petitioner fails to reply to the RFE within the prescribed regulatory time, the I-140 and associated I-485 will be denied even the I-485 applicant timely responded. If the I-140 petitioner does respond to the RFE within the prescribed regulatory time and the I-485 applicant does not timely respond to the RFE, the I-140 petition will be adjudicated on the merits and the associated I-485 denied. The Ohata Memo does not change basic adjudicative practices for any of the affected form types (I-140, I-485, I-765, I-131). Service Center Directors, in his/her discretion may discontinue to do a prima facie review on concurrently filed cases or modify the scope of the review. All other processes currently in place with regards to prima facie review and the processing of associated files remain in effect. The USCIS has announced that if there has been no adjudicative action regarding the I-140, the Ohata Memo would also apply to concurrently filed I-140 and I-485 cases that are in the USCIS adjudication pipeline. If the USCIS has already adjudicated the I-140, the Ohata Memo would not apply. In response to the Ohata Memo, service centers are acting to develop their own programs to rapidly adjudicate concurrently filed I-140 and I-485 applications. Zhang & Associates will continue to monitor these programs, and ensure that our clients take full advantage of the expedited processing procedures available in all service centers. (05/13/2004) |
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