Procedures Upon Denial of I-140 in Concurrent Filings
Posted Mar 15, 2003

In an INS Memo issued February 28, 2003, the INS (now BCIS) outlined procedures and policy in the event an I-140 (Immigrant Petition for Alien Worker) is denied in a concurrently filed I-140/I-485 (Application for Adjustment of Status) case. Essentially, if the I-140 is denied, the I-485 will also be denied. The I-485 dependant applications for Employment Authorization (EAD) and Advance Parole (AP), using Forms I-765 and
I-131, respectively, will also be denied. The reason for this is that, without an I-140 approval, there is no proper basis for approval of the I-485.

As regular readers of the MurthyBulletin and MurthyDotCom know, it has been possible to concurrently file I-140s and I-485s since July 31, 2002. Previously, the I-140 had to be approved before an I-485 could be filed. This matter was covered in detail in our August 9, 2002 article, Concurrent
I-140/I-485 Filings Now Allowed, available on MurthyDotCom. It has long been the case that I-130s (Petition for Alien Relatives) could be filed concurrently with I-485s, provided approval of the I-130 would make a visa number available immediately.

Under the terms of the February 28^th Memo, the procedures for processing cases in which I-140s have been denied also apply to family-based cases in which the underlying I-130 is denied. This has been routine procedure in family-based cases for many years.

The Memo states that, if the I-140 denial is successfully appealed, the
I-485, I-765, and I-131 can be reopened on Service Motion. This indicates that the Service would take the necessary steps to reopen the denied cases, rather than requiring the individual to do so. However, such actions can take a long time and this puts one into a precarious situation if the
I-485 is denied. The individual will be out of status unless a valid, nonimmigrant status can be obtained. The filing of an appeal does not preserve legal status and success can never be presumed nor guaranteed in any appeal.

Although AC21 is not addressed in the Memo, apparently it forecloses the argument that, once the I-485 has been pending for 180 days under AC21, the individual is "portable" with or without the approved I-140. When AC21 became law, concurrent filing was not allowed. Therefore, the filing of the
I-485 could only be based on an approved I-140 and the law presumed such an approval. Since the law only spoke in terms of portability after the I-485 was pending for 180 days, it was hoped and argued that the individual was essentially "free" of the underlying I-140 petition at the 180-day point, whether approved or not. This, therefore, is an important issue with respect to concurrent filings and the applicability of AC21.