Substitution of an I-140 Approval Notice in a Different Category Possible!
Posted Oct 27, 1999

In a recent AILA liaison meeting with the Nebraska Service Center (NSC) of INS, an attorney enquired whether a person with an employment-based I-485 pending based upon an EB3 I-140 approval could substitute a second I-140 approval (in EB2) to continue processing the existing I-485. The answer was, surprisingly, yes!!

At present, we do not know how far this response extends. NSC confirmed that the above would be true whether the second I-140 was for the same or a different employer, or based upon the same or a different labor certification. However, at this point we do not know if the process would work for EB1 cases, for example.

Many of the clients of the Law Office of Sheela Murthy apply in both the National Interest Waiver (NIW) and one of the EB1 categories. If the NIW is approved when the EB1 is still pending, it is then necessary to decide whether to file the I-485 based upon the NIW, or wait for the decision on the EB1 I-140. INS has not confirmed its position in this situation, but we intend to take a proactive approach and try submitting the I-485 with the NIW approval, based on the request of a client who has already filed the I-485 based upon the other employment based category approval.