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INS Rule Allows Concurrent Form I-140 And Form I-485 Filings, But Leaves Several Issues Unresolved
by Cyrus D. Mehta

The Immigration and Naturalization Service (INS) promulgated an Interim Final Rule allowing Form I-485, Application to Register Permanent Residency or Adjust Status, to be concurrently filed with Form I-140, Immigrant Petition for Alien Worker. Until the promulgation of this interim rule on July 31, 2002, Form I-485 could not be filed simultaneously with Form I-140. The Form I-140 petition had to be approved before Form I-485 could be filed.

Under the Interim Rule, Form I-485 can be filed simultaneously when Form I-140 is filed under the employment-based first, second and third preferences. If Form I-140 has already been filed before July 31, 2002, Form I-485 may now be filed with a copy of Form I-797, Notice of Action, establishing prior receipt and acceptance of Form I-140 petition.

As a background, Form I-140 is generally filed after the underlying application for labor certification has been approved by the Department of Labor. There are many instances when the underlying labor certification is not required. For instance, the first preference categories - persons of extraordinary ability, outstanding professors and researchers, and multinational managers/executives - do not need labor certification. Also, under the employment-based second preference, the labor certification requirement may be waived if the foreign national can establish that it is in the "national interest" to do so. Nurses and physical therapists who file I-140 petitions under the employment-based third preference do not have to obtain labor certification prior to filing.

Under the Interim Rule, one could instantly obtain all the benefits of being an applicant for adjustment of status at the time of filing Form I-140, such as obtaining employment authorization. Furthermore, even eligible family members, such as the spouse and minor children, can file Form I-485 applications. However, each applicant would still need to demonstrate eligibility for adjustment of status regardless of whether it is filed concurrently with Form I-140 or not. Thus, a visa number has to be currently available (which is the case presently for all three employment-based preferences) and the applicant must have also have maintained lawful nonimmigrant status, unless he or she is protected under Sections 245(i) or 245(k) - provisions that permit those who have violated status to file for adjustment of status under specific circumstances.

There are three areas that still remain unclear.

First, Section 106(c) of the American Competitiveness in the 21st Century Act (AC21) (codified at INA Section 204(j)) allows "portability" when an application for adjustment of status has been filed and remains unadjudicated for 180 days or more. This application remains valid even if the individual changes jobs or employers, provided the new job is in the same or similar classification as the job for which the petition was filed. It remains unclear whether one can exercise portability under Section 106(c) of AC21 when the I-140 has been filed and not yet approved. However, there is nothing in the language of Section 106(c), which requires that Form I-140 be approved as a precondition to "portability."

Second, it is unclear whether the adjustment of status application can remain valid if the concurrently filed I-140 petition is ultimately denied and a timely appeal or motion to reopen or reconsider has been filed with the INS. A foreign national should be allowed to remain in status via a concurrently filed Form I-485 when legitimately pursuing an appeal, often based on an erroneous I-140 denial.

Finally, the preamble to the Interim Rule states that filing a Form I-485 application with the Immigration Court or the Board of Immigration Appeals (BIA) does not stop or stay removal or deportation proceedings.

Generally, the filing of an adjustment application in deportation or removal proceedings can act as a defense and could lead to the case's closure. It can also be used, under limited circumstances, as a basis to file a motion to reopen or remand. Yet, the preamble indicates that a "concurrently" filed I-485 will only be accepted as a filing and cannot be used to stay proceedings or serve as a vehicle for a motion to reopen or reconsider, unless the I-140 petition is approved. This does not make sense as an adjustment applicant is considered to be in legal status, and one who has filed the Form I-485 concurrently on or after July 31 cannot be put into proceedings for prior violation of legal status.

It is this writer's opinion that if an I-485 is concurrently filed under the Interim Rule, neither an Immigration Judge nor the BIA would be able to actually issue an order of removal or deportation (while the I-140 remains unadjudicated) even though the preamble suggests that such an application will not be able to stay proceedings. In the context of unadjudicated marriage-based Form I-130 petitions, the BIA recently ruled that a properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted, notwithstanding the pendency of the I-130 petition. See In re Velorde-Pacheco, 23 I&N Dec. 253 (BIA 2002). The same should hold true in the case of an I-485 application concurrently filed with an unadjudicated I-140 petition.

Hopefully, the INS will clarify these unresolved issues upon promulgation of the final rule. The Interim Rule invites comments from the public on or before September 30, 2002.

Click here for Interim Rule.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or

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

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