AOS Issues Clarified by USCIS Service Center Operations
Posted Jul 20, 2007
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In a July 2, 2007 teleconference, the USCIS Service Center Operations (SCOPS) provided answers to questions regarding the new filing fee schedule and adjustment-of-status (AOS) filing questions posed by the American Immigration Lawyers Association (AILA). This is helpful, as it clarifies important issues, like what the new I-485 filing fees cover, restrictions on interfiling I-140 petitions between spouses in pending I-485 cases, and why filing more than one I-485 (for the same person) should be avoided, as we at the Murthy Law Firm have always recommended. Such teleconferences are conducted bi-weekly to address areas of concern and confusion.
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Filing Fees for Forms I-765 and I-131
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The USCIS has confirmed that for Forms I-485, filed after the new filing fees go into effect on July 30, 2007, there will not be a fee for an I-765, Application for Employment Authorization Document (EAD), or an I-131, Application for a Travel Document (Advance Parole). This applies whether the I-765 and I-131 are filed concurrently with the I-485 application or are filed subsequently. In order to accept I-765 and I-131 filings without a fee, the USCIS will review the I-485 receipt notice for the filing date and fee paid to determine whether the I-485 falls under the new or old fee schedule. This "no fee" I-131 or I-765 is ONLY for the those who pay the higher, all-inclusive I-485 fee on or after July 30, 2007.
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I-485 Filing Fees for Refugees and Asylees
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The USCIS has stated that only refugees are exempt from submitting an I-485 filing fee. The fee still applies to I-485 applications filed by asylees. There does not seem to be any particular logic in this distinction, as both refugees and asylees receive their respective statuses based on the same legal criteria. Therefore, AILA has asked the USCIS to review this matter, since it appears that the fee exemption should apply to both asylees and refugees.
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Applications Postmarked Before July 30, 2007
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If the I-485 filing is postmarked prior to July 30, 2007, the old fee can be submitted. If the I-485 is postmarked on July 30 or later, the new fee applies. With the USCIS announcement that was made late July 17, 2007, however, the USCIS has agreed to accept the earlier filing fees for all employment-based I-485 cases that were eligible for filing during July 2007, and that are now being accepted through August 17, 2007.  
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Multiple I-485 Filings Not Advisable
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While the immigration regulations do not prohibit filing more than one I-485 for the same applicant, and the USCIS cannot provide guidance or advice for filing multiple I-485s, an applicant can adjust his or her status based only on one I-485 application. Therefore, submitting more than one filing at any given time potentially could result in problems. The USCIS could request that one set of adjustment applications be withdrawn, that the two applications be combined into one, fingerprints and security checks many not be conducted on both filings, or one set of I-485 applications could be denied. Thus, it is almost always advisable not to have multiple I-485s pending at the same time.
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Interfiling Issues : Cannot Switch I-140 Petition from Primary to Dependent
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Interfiling is a procedure that allows an applicant to change the I-140 petition upon which the I-485 is based. Essentially, the I-485 is filed based on an I-140 petition, but the applicant wants to proceed through a new or different I-140 petition. Interfiling permits the individual to "switch" the I-140 upon which the I-485 is based.
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In a scenario where both husband and wife have independent I-140 petitions filed by their respective employers, and where there is a set of I-485s (one for the primary spouse and one for the derivative spouse) filed with regard to one of the I-140s, there is no option of interfiling based upon an I-140 approval for the derivative spouse. This is because the roles of derivative spouse and primary applicant would have to be reversed in this situation. There is no mechanism when interfiling to shift applications from derivative to primary and from primary to derivative, therefore making them improperly filed with the other I-140 petition. Of course, if the same person has an EB3 and now an EB2 I-140 petition, the USCIS will allow the EB2 I-140 approval to replace the previously-filed EB3 I-140 petition approval.