INS Announces Concurrent Filings of I-140's and I-485's
The Immigration Group at True, Walsh & Miller
The Immigration and Naturalization Service (INS) announced by interim rule on July 31, 2002 that it will now accept I-485 adjustment of status applications filed concurrently with I-140 employment-based (EB) immigrant visa petitions from immigrant visa beneficiaries in the EB -1, 2 and 3 categories whose priority dates are current. Adjustment of status applications from spouses and children (unmarried and under 21 years old) of the principal beneficiary will also be accepted. Here is a quick summary of the rule.
How do I file under the new rule?
Under the new rule, file INS Form I-140 with the appropriate filing fee and Form I-485 with the correct filing fee and supporting evidence, such as birth certificate, medical exam report completed by an INS-approved doctor, photos and proof of maintenance of status. Everything should be filed with the regional INS Service Center having jurisdiction over the beneficiary's place of work. Forms I-131 and I-765 with fees, photos and supporting documents may also be filed at the same time.
What if my I-140 is already pending?
If your I-140 is pending but not adjudicated, a copy of the Service Center's I-797 receipt may now be filed together with the I-485 package for each foreign national member of the family.
What if the I-140 requested consular processing?
The interim rule, which is effective now but subject to a 60-day comment period, did not address this issue. In the absence of guidance to the contrary, INS may accept I-485 adjustment of status filings for pending I-140 immigrant visa cases even where the I-140 petition requested consular processing.
Will this speed overall adjudications times?
The INS states "efficiency" as the reason for permitting concurrent filings. However, it is difficult to know if the overall period of time for adjudication of the I-140 and I-485 will be any shorter. Permanent resident status may still be obtained more quickly in some cases by filing an I-140 requesting consular processing than through the concurrent filing process now permitted by INS.
Who is not allowed to file concurrently?
EB-4 (ministers) EB-5 (investors) are specifically excluded by the new concurrent filing rule. Also excluded, implicitly, are J waivered physicians serving a three-year service obligation in H-1B status who have NOT filed an I-140 in the "shortage area NIW' category. NIW physician applicants MAY concurrently file the I-140 and I-485. Further, any prior J visa holder who remains subject to the two-year home residency requirement presumably may not file concurrently.
What are the benefits of concurrent filing?
The presumed benefits of concurrent filing are: (1) overall shorter length of time until attainment of lawful permanent resident status; (2) interim work permits and travel permission (advance parole) benefits available to each family member; (3) less opportunity for error by the INS, which now has the two related filings (I-140 and I-485) to adjudicate together; (4) preservation of status based on the I-485 filing for those whose temporary visa status will soon expire; and (5) relief from an obligation to maintain or renew temporary visa status, such as H-1B or L.
What are the risks of concurrent filing?
The risks of concurrent filing are: (1) possibly longer processing times as the INS works out the kinks in the new system; (2) loss of filing fees, medical exam reports etc, if the INS ultimately denies the I-140 immigrant visa petition (this risk is especially great for employer-sponsored I-140's where the employment is terminated or the company is bought or sold before the INS decides the concurrent filing); (3) possible adverse impact on fiancÚ(e)s or family members residing abroad if the I-485 is approved too quickly; and (4) possible unlawful presence problems for people who are unlawfully in the United States and who travel overseas on advance parole while the I-140 and I-485 are pending.
What are the possible impacts of concurrent filings?
Priority dates may back up in the employment-based immigrant visa categories and in the family 2A and 2B categories as people start to take advantage of the new rule. The INS may take longer to adjudicate work permit and advance parole requests if fingerprint and security clearances are required first. The INS may eventually offer premium processing of I-140's that are not filed concurrently with I-485's, making the consular processing route to PR status even quicker.
The new INS rule on concurrent I-140 and I-485 filings is a major change for the agency. Delays and confusion can be expected as the INS sorts out procedures under the new rule. In addition, several unanswered questions remain under the rule. The INS is accepting comments, and the final rule may change. Stay tuned.
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