The Concurrent Filing Rule: I-140 and I-485 "One-Step" Application Process

On July 31, 2002, the permanent residence process became more streamlined for some intending immigrants. The Immigration & Naturalization Service (INS) issued an interim rule allowing foreign nationals to file with the INS their application to adjust to permanent resident status (Form I-485) concurrently with their employers' filing of the immigrant visa petition (Form I-140), as long as an immigrant visa number is immediately available. In the past, foreign nationals have been required to wait until the I-140 petition has been approved - which can take from 3 to 12 months - before the I-485 application could be filed. The concurrent filing rule enables foreign nationals and their family members to obtain Employment Authorization Documents (EADs) more quickly, and it could result in trimming several months off the total processing time for permanent residence for some intending immigrants.

Our company filed an I-140 with the INS and it's still pending, but we didn't use the concurrent filing rule to file the employee's I-485 at the same time. Does the concurrent filing rule do anything to help us?

Yes. The concurrent filing rule gives an employer two options: (1) you may choose to file the I-140 and I-485 at the same time; or (2) you may choose to file the I-140 by itself, and at some later date the employee may file the I-485 application along with a copy of the Receipt Notice for the I-140 petition. So in the situation you described, the employee may file the I-485 application now, without waiting for the I-140 to be approved.

Can the foreign worker apply for employment authorization when filing the I-485 under the concurrent filing rule?

Yes. The foreign worker and his/her spouse and children may file an Application for Employment Authorization (Form I-765) and an Application for Travel Document/Advance Parole (Form I-131) at the time of filing the I-485 application. The INS has been issuing Employment Authorization Documents (EADs) even before the I-140 petition is approved.

Who can benefit from this rule?

The concurrent filing rule is available only for employment-based immigrants for whom a visa number is immediately available. Currently, there is a visa number available to all employment-based immigrants, but intending immigrants must check the Department of State Visa Bulletin each month to confirm whether a backlog has developed based on their country of birth. People born in India and China are most commonly affected by the backlog.

Will the concurrent filing rule affect INS processing times for I-140 petitions?

INS processing times for I-140 petitions have stayed generally the same since the concurrent filing rule was adopted. It is possible that I-140 processing times could be impacted in the future, but at the moment, the concurrent filing rule seems to have had no noticeable effect on I-140 processing times.
Will the concurrent filing rule result in shorter processing times for permanent residence?

When an I-140 and I-485 are filed concurrently, the INS has taken some steps to start processing the I-485 before the I-140 is approved. For example, the INS has been sending fingerprint notices – a step that is required for the I-485 process – even before the I-140 petition is approved. This has been true both in cases where the I-140 petition is based on an approved labor certification, and in cases where the I-140 petition is filed as the first step in the permanent residence process, such as in the multinational manager, extraordinary ability, national interest waiver, or outstanding researcher categories. The fact that the INS is sending fingerprint notices shortly after the I-485 application is received indicates that the INS plans to adjudicate I-485 applications as quickly as possible.

Should all foreign workers file their I-485 applications at the same time as the employer's filing of the I-140 immigrant visa petition?

Not necessarily. For example, if an I-140 petition is ready to be filed, but it will take several weeks or months to gather the documents for the I-485 application, then it may make sense to file the I-140 petition immediately without waiting for the I-485 application to be prepared. Additionally, if there is uncertainty about whether the petition will be approved - particularly for outstanding researcher, extraordinary ability, or national interest waiver petitions - the employer and foreign worker may not want to incur the cost and inconvenience of a medical examination and other obligations related to the I-485 application until the I-140 petition has been approved.

Will the 180-day time clock for I-485 "job portability" begin running as soon as an I-485 application is filed concurrently with an I-140 petition?

It is not yet clear whether the 180 days will start upon the INS's receipt of an I-485 application that is filed concurrently with an I-140 petition; or if the 180 days will be counted from the date when the I-140 petition is approved. Under the American Competitiveness in the 21st Century Act (AC-21), if an I-485 application remains pending with the INS for 180 days or longer, a foreign worker may change jobs with the sponsoring employer, or may change employers, as long as the new job is in a same or similar occupational classification as the job identified in the I-140 petition. The I-485 portability rule was established at a time when the INS presumed that an I-140 petition would be approved before the I-485 application could be filed. We will need to wait for further guidance from the INS on this question. Until then, in cases where the I-485 is filed before the I-140 is approved, the safest approach will be to start counting the 180 days on the date when the I-140 is approved.

Footnote
¹ On March 1, 2003, the Immigration and Naturalization Service became part of the new Department of Homeland Security. The Bureau of Citizenship and Immigration Services (BCIS) now handles all immigration services and benefits. As this article was prepared prior to the transition, references to the INS can be read as a reference to the BCIS.