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INS Allows Concurrent Filing of I-140 and I-485

By Sean G. Hanagan and William J. Manning
  • August 2, 2002

The Immigration and Naturalization Service (INS) issued an Interim Rule, which allows concurrent filing of Form I-140, Immigrant Petition for Alien Worker, and Form I-485, Application to Register Permanent Residence or Adjust Status, when a visa number is immediately available (Interim Rule published in the Federal Register July 31, 2002). An immigrant visa is immediately available when the priority date is earlier than the date listed on the Department of State's Visa Bulletin. Presently, all the employment-based visa categories are current, so concurrent filing is available for the first three preference categories affected by this rule: (1) EB1 Priority Workers; (2) EB2 Advance Degree Professionals and Exceptional Ability Aliens; and (3) EB3 Professionals, Skilled Workers, and Other Workers.

Once the employer's Labor Certification is approved on behalf of their employee, that employee will no longer have to wait for the I-140 petition to be approved before he/she may apply for adjustment of status. The Interim Rule is effective immediately and applies to both new I-140 filing and I-140 petitions which are pending before the INS (see below).

Previously Filed I-140s

When an immigrant visa is immediately available, the I-485 may be filed either concurrently with the I-140, or any time thereafter. Therefore, if an I-140 was filed prior to the publication of this Interim Rule, the petitioner may file an I-485 with the INS office where the I-140 is pending. A copy of the Form I-797, Notice of Action (receipt notice), must be included with the I-485 filing.

Other Benefits (Employment Authorization and Advance Parole)

The Interim Rule also allows the I-140/I-485 applicants to apply for an Employment Authorization Document (EAD) and an Advance Parole, while the I-140 and I-485 applications are pending. Unlike present policy, the applicant must no longer wait for the I-140 approval to apply for either. Though the rule does not specifically address whether spouses and children will also qualify for an EAD and Advance Parole, INS has indicated that immediate family members will be able to benefit from this provision as well.

Deportation or Removal Proceedings

If a foreign national is in removal or deportation proceedings, the I-485 must be filed with the Court having jurisdiction over the case. However, the filing of the I-485 does not stay the proceedings.

Please note that INS is seeking comments on the interim rule, which are due within 60 days of the date of publication (7/31/02). Comments must reference "INS No. 2104-00" and should be submitted to the Director of the Policy Directives and Instructions Branch via e-mail at insregs@usdoj.gov or by U.S. post at: INS at 425 I St. NW, Room 4034 Washington, D.C. 20536.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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