Concurrent I-140 / I-485 Filings Now Allowed
Posted Aug 09, 2002

The big news this week in immigration law is the new regulation, effective July 31, 2002, allowing concurrent filings of Forms I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application to Register Permanent Residence or Adjust Status). MurthyBulletin subscribers and visitors to MurthyDotCom were advised of this development immediately in a NewsFlash. We take this opportunity to announce this important change in more detail.

CHANGE IN LAW

Effective July 31, 2002, it is permissible to file the Form I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application to Register Permanent Residence or Adjust Status) at the same time. The I-140 is the second stage of the green card process in most employment-based cases, while the I-485 is the third and final stage. It is now possible to file these two forms (with all related forms) together. This is a change over prior law that required the I-140 approval before one could file the I-485.

WHO IS ELIGIBLE?

Green Card Categories
This provision applies to Employment Based First Preference, Second Preference, and Third Preference Cases (EB1, EB2, and EB3) only. It does not apply to the other EB categories, EB4 (Special Immigrants, including religious workers) or EB5 ("Employment Creation" immigrants, more commonly called "investors").

New and Pending Cases
This rule applies to persons for whom I-140s are being filed at this time and to those who are the beneficiaries of pending I-140s. That is, even if the I-140 has already been filed, the beneficiary may utilize the new provision and file an I-485 prior to the approval of the I-140. When filing the I-485 in this later situation, the receipt notice for the I-140 must be included as proof of eligibility.

Priority Date Must Be Current
In order to file the I-485 the priority date must be current. An explanation of priority dates is available in our March 18, 2000 article, Priority Dates: How Do They Work, available on MurthyDotCom. If the priority date is not current when the I-140 is filed, but becomes current at some later time prior to approval, the I-485 can be filed at that time.

Presently, priority dates are current for all employment-based categories and, prior to the change in procedure, the U.S. Department of State (DOS) estimated that they would remain current until sometime in 2004. The changed procedure may result in the utilization of the visa numbers at a faster rate and affect the priority date availability. Priority date availability is posted by the DOS monthly and can be found on MurthyDotCom.

Adjustment Eligibility
Of course, as was the case before the new regulation, adjustment of status is only available to persons who are present in the U.S. Other restrictions apply and limit eligibility for adjustment of status. Factors that may limit eligibility for adjustment of status in some circumstances include, but are not limited to: manner of and unlawful entry, failure to maintain status, length of lapse in status, work without authorization, criminal history, and prior immigration violations. Since these issues involve a number of provisions of law and can be complex, they should be discussed with an experienced immigration attorney.

Family Members
The benefits of the regulation are extended to derivative spouses and children under 21, so the whole family can file the I-485 together. In cases where a person is single when filing the I-485 but gets married later, the marriage must occur before the I-485 is approved for the principal beneficiary (i.e. the sponsored employee) in order for the spouse to also be included in the case. This rule has always existed. For those thinking about marriage, this consideration is important with respect to whether to file the I-485 concurrently with the I-140 petition.

BENEFITS

There are numerous potential benefits to this change. Certain rights and privileges attach when a person files an I-485. It is possible to file an application for an Employment Authorization Document (EAD) simultaneously with the I-485. The EAD generally takes about 3 months to arrive. Derivative spouses and children of working age, who otherwise may have been in a non-immigrant status such as H-4 that does not permit employment, can also apply for the EAD.

In order to travel, one can also apply for the travel document known as an advance parole. As always, the warnings on the Advance Parole document should be read carefully. Advance Parole does not protect against the 3- or 10-year bar on reentry to the U.S. for a person who goes abroad after having been unlawfully present for 180 days or longer. Such persons, if eligible for adjustment, will need to wait in the U.S. until their I-485s are approved. Upon approval, they will be lawful permanent residents and will no longer be subject to the 3- or 10-year bar.

The proper filing of an I-485 puts an individual in a "period of authorized stay." This essentially allows the individual to remain in the U.S. awaiting the case decision and prevents accrual of "unlawful presence" time and "out of status" problems caused by loss of employment and other situations, such as reaching a 6-year limit on an H1B. As a result, many people will be able to avoid the effort and expense of filing extensions of nonimmigrant status. Issues regarding status maintenance and unlawful presence can also be complex, so decisions regarding whether to file extensions or changes in non-immigrant status should be discussed with an experienced attorney.

OTHER ISSUES

It is unclear, as of the time of this writing, how this new procedure will interplay with AC21 portability. It is also not clear whether these new filings will result in changes in priority date availability estimates. We expect that, if the I-140 is denied, the I-485 will also be denied. In this case, the individual will lose the time and money that has been spent in the I-485 process.

TIPS

An applicant for adjustment of status will need birth certificates or equivalent documentation to file the I-485 application. If the applicant does not have these documents, s/he should take the necessary steps to obtain them from the home country, as this may take some time. If the documents are not in English, translations will be required in addition to the documents. Adjustment applicants also must undergo an immigration medical exam from an authorized civil surgeon. Information on locating these individuals is available on the INS WebSite, under Frequently Asked Questions, Medical Examinations. Given the expected wave of filings, it may be difficult to get an appointment without an extended wait.

Adjustment applicants must also provide information regarding their addresses for the past five years, including dates "to and from" and employment for the past five years. For some, these histories can be difficult to reconstruct, so it may be wise to start putting this information together as soon as possible.

We are pleased to bring this favorable news to MurthyBulletin and MurthyDotCom readers. We look forward to making the long-awaited final filings for many of our clients, enabling them to obtain their "green cards" sooner.