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INS Changes Rules in Employment Based I-485s
by Arthur L. Zabenko

Current INS regulations provide that employment based green card applications (I-485s) cannot be filed until the I-140, petition for employment based immigrant visa, has first been approved. Effective July 31, 2002, the INS is changing the regulation to allow for simultaneous filing of I-140s and I-485s if a visa number is immediately available.

The change was published in the Federal Register as an interim rule with request for comments. As of July 31, 2002, the INS will allow the Form I-485 to be filed concurrently with the I-140 when a visa is immediately available. 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 I-485, together with the applicable fee and a copy of their I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying form I-140 visa petition. At the time of filing the I-485, the alien can also apply for employment authorization and for advance parole.

According to the INS commentary on the interim rule, the change is necessary to improve both efficiency and customer service, and to support the agency's goals for filing of petitions by direct mail. The new rule requires that a visa number be immediately available for the I-485 to be filed with the I-140. For August all the employment based immigrant visa categories are available. If an I-140 is filed but the I-485 is not because the visa is not immediately available, then as soon as the quota becomes current the beneficiary can file the I-485. It will not be necessary to wait until the I-140 is approved.

An issue not addressed in the commentary is portability. Section 105(c) of AC21 provides that a "petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed." If an I-140/I-485 are filed and remain unadjudicated for more than 180 days, and the beneficiary/applicant changes employers but continues in the same or similar occupation, then the I-140, if favorably adjudicated, should remain valid.

This rule change must come as welcome news to employment based green card applicants many of whom have been waiting years to see the process completed.

About The Author

Arthur Zabenko practices immigration law with the firm of Lubiner & Schmidt. He is the former editor of Immigration Daily. He may be contacted at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.