Effective today, July 31, 2002, the INS will allow concurrent filings of
Form I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application
to Register Permanent Residence or Adjust Status). Previously, the I-485
could not be filed until the I-140 was approved. The waiting time will no
longer be required, provided that the priority date is current in the
appropriate employment-based category. At this time, all the priority dates
are current for all the employment-based (EB) categories.
The concurrent filing procedure was authorized under an INS interim
regulation that was published in the Federal Register on July 31, 2002 and
is effective immediately, that is, as of the publication date. There is a
sixty-day comment period allowed but this does not limit the immediate
ability to file concurrently. The regulation also provides that persons who
are the beneficiaries of pending I-140s may file their I-485s prior to the
approval of the I-140 Petition. When filing their I-485s, such EB applicants
will need to include the receipt notice for the I-140 as proof of
eligibility to file the I-485 under this regulation.
Persons who file the concurrent I-140 with the I-485 will be entitled to the
same privileges as ordinarily granted to those with pending I-485s. In other
words, such people will be able to file for and obtain an Employment
Authorization Document (EAD) and advance parole. Once a person files the
I-485 application, s/he will generally also have the advantage of being
considered lawfully present in the U.S. while the I-485 case is pending,
even if the non-immigrant status has expired or if s/he has failed to
maintain valid legal status.
The stated purpose of the regulation is to eliminate the delay between
filing the I-140 and the I-485. The regulation has many potential benefits
and some drawbacks. Benefits of the regulation include INS expediting the
I-485 processing time; the foreign national no longer having to maintain a
separate, non-immigrant status while the I-140 and I-485 are pending; and
protecting those who have filed the I-485 in the event the priority dates
retrogress with an EAD allowing employment, etc. Drawbacks exist in
instances where a person obtains the Advance Parole from the INS after s/he
had already accrued 180 days of unlawful presence prior to filing the I-485.
In such a situation, upon traveling abroad and then attempting to reenter
the U.S., the person would be subject to the 3-year or 10-year bar. Another
potential disadvantage is that, if the INS denies the underlying I-140
petition, the person would have lost all the INS filing fees and legal fees
paid on the case.
