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To File or Not to File? (Concurrently that is)
Business Immigration Quarterly, Fall 2002
Linda M. Keck, Attorney at Law
On July 31, 2002, the Immigration and Naturalization Service (INS)
promulgated an interim rule allowing the concurrent filing of Form I-140
employment based visa petitions and Form I-485, Application to Register
Permanent Residency or Adjust Status. If the I-140 is already pending, the
I-485 may now be filed together with the I-140 receipt notice. Prior to this
rule, I-140 petitions had to be approved before the Form I-485 could be
filed.
While the new concurrent filing rule allows a foreign national to obtain all
the benefits of an applicant for adjustment of status at the time of filing
the Form I-140, there are some risks associated with concurrent filing and
each case should be reviewed and judged on its own merits.
The Benefits of Concurrent Filing
1. Interim employment authorization (EAD) and travel permission (Advance
Parole) available not only to the principle applicant but to each family
member as well. Spouses and child dependents who were previously
unauthorized to work will be able to obtain employment authorization upon
concurrent filing.
2. Alleviation of 5, 6, or 7 year maximum problems and the preservation of
status. For those whose visa status is about to expire, the I-485 filing
gives status in and of itself along with the opportunity to obtain
employment authorization as discussed above. Because of the lengthy
adjudications for Department of Labor and INS applications, many individuals
ran out of time before their I-140 was approved. With concurrent filings an
individual can now file the I-140 and the I-485 together, acting to preserve
status.
Risks of Concurrent Filing
1. I-485 is valid only as long as the I-140 Immigrant Visa Petition is
valid. If the underlying I-140 is a difficult case, then it makes sense to
first file the I-140 and see where the adjudication goes. In addition,
denial is also possible where employment is terminated or the company is
bought or sold before the INS makes a decision on the concurrently filed
I-140.
2. Significant financial outlay associated with the filing of the I-485. The
I-485 application fee is currently $255 plus a $50 fingerprint fee. When you
add in the cost of medical exams, photographs, etc. for a family of four,
the fees are quite steep. Should the underlying I-140 petition be denied,
the I-485 expenses are lost.
Conclusion
The idea behind concurrent filing is to improve INS efficiency. It remains
to be seen whether or not the concurrent filing system will decrease the
adjudication period or increase it. According to current information, the
INS is still adjudicating I-140s and I-485s separately. The concurrent
filing rule also seems to have made less likely the offer of premium
processing on I-140 petitions. For those outside of the United States or
those interested in using consular processing as an option, this is bad
news. However, the concurrent filing rule does create clear benefits and
gives the immigration practitioner more tools to manage an individual’s
immigration process as they move towards permanent residence.
Linda M. Keck, Esq.
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