Proposal to End Concurrent I-140/I-485 Filings
Posted May 16, 2008
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The U.S. Citizenship and Immigration Services (USCIS) has expressed its intention to end the practice of allowing concurrent filing of the I-140 and I-485 when the priority dates are current for employment-based applications. The only available information states that the USCIS proposes amending the regulations regarding concurrent filing of Forms I-140 (employer's petition for its immigrant worker) and I-485 (Application for Adjustment of Status to Permanent Residence). The USCIS is considering reverting to the prior policy of prohibiting the filing of the I-485 until the I-140 petition is approved. This information was gathered from the Unified Agenda of Federal Regulatory and Deregulatory Actions, made available through the Office of Management and Budget (OMB). The proposed rule is scheduled for publication in June 2008, with a sixty-day comment period.
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Background and Concurrent Filing Issues
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Concurrent filing became available on July 31, 2002, as reported in our article, Concurrent I-140/I-485 Filings Effective Immediately, posted on that day. It has been a useful tool, allowing I-485s to be filed at any time during the I-140 process, as long as the priority dates are current in the individual's employment-based category. This can be especially important for those impacted by retrogression and the unavailability of visa numbers. Without it, many of the I-485 cases filed in the summer of 2007 could not have been filed, as a large portion of these were based upon I-140s that were not yet approved. Applicants want to be able to file I-485s during the limited windows of opportunity presented to them, based upon the priority date movements in the Visa Bulletin.
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The timing of an I-485 filing ultimately can affect the course the case takes and its outcome. It allows for eligibility for other benefits for the foreign national employee and immediate family members, including the Employment Authorization Document (EAD) and Advance Parole (AP). The earlier filing of the I-485 also potentially hastens the eligibility to change employment. Thus, changing the procedure potentially empowers some employers, since employees may not be eligible to change jobs as quickly. Of course, it also limits employers who are interested in promoting or transferring sponsored employees.
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Of course, permitting concurrent filing does open more opportunities with regard to I-485 filings. The USCIS was overwhelmed by the cases filed during the summer of 2007, and is, in all likelihood, trying to control the volume of I-485 filings, should a similar event occur in the future. The exact rationale and details should be set out in the proposed regulation, if and when it is published.
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Conclusion
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Eliminating concurrent I-140/I-485 filing would be a significant procedural change that potentially could impact the outcome for many people. Removal of the concurrent filing option, however, should not have any direct consequences for persons who have already filed I-485s. It is important to understand that the concurrent procedures remain in place unless and until the regulation is finalized and published with the change. As this is an extremely important topic to many of our clients, as well as readers of MurthyDotCom and the MurthyBulletin, we will be certain to post new information, as it becomes available.