Concurrent Filing : October 2002 Update
Posted Nov 08, 2002

The recent change in procedure allowing for concurrent filing of Forms I-140/I-485 (Petition for Alien Worker / Application for Adjustment of Status) has raised some procedural questions. The Immigration Services Division (ISD) of INS shed some light on several of these questions during an October 17, 2002 teleconference with representatives of the American Immigration Lawyers Association (AILA).

Frivolous Filings in Concurrent Cases

As reported in our October 11, 2002 MurthyBulletin article, ISD Teleconference: September 19, 2002, INS maintains that the new procedure has generated an increased number of “frivolous filings.” A case is considered frivolous if it is without any arguable legal basis to qualify for an approval. Presumably, some people have filed frivolous I-140s in order to gain the benefits of the I-485 filing undeservedly, even though the I-140 and I-485 would eventually be denied. In order to address the problem of frivolous filings, the INS will undertake an initial review of the I-140 to determine whether it satisfies the “prima facie eligibility” standard. Essentially, it must be a proper filing on its face. The Service Center personnel met to develop procedures for the smooth handling of concurrent filing procedures. They developed an internal checklist for evaluating prima facie eligibility, but did not issue any written guidance for the public on the topic.

INS will Adjudicate the I-140 Prior to the I-485

The ISD clarified that the I-140 will be adjudicated before the I-485. A separate INS Notice of Action will be sent indicating approval or denial of the I-140. No information was provided regarding what effect, if any, this procedure would have on eligibility for AC21 portability.

Jurisdiction for Concurrent-Filing Cases

Concurrent filing of the I-140 and the I-485 should be sent to the place having jurisdiction over the I-140. For cases requiring a labor certification, the I-140 must be filed with the region where the labor certification was approved. When the I-140 has been filed and is already pending with the INS, and the concurrent I-485 is filed prior to the I-140 approval, the I-485 must be filed in the locale where the I-140 is pending. In a case with an approved I-140, the I-485 may be filed either where the I-140 was approved or in the place having jurisdiction over the I-140 beneficiary's place of residence.