| CKR |
Posted
on 06-Aug-02 11:27 AM
From Murthy Bulletin : Concurrent I-140 / I-485 Filings Effective Immediately
MURTHYBULLETIN
Weekly Immigration Newsletter
THE LAW OFFICE OF SHEELA MURTHY, PC
NEWSFLASH : Concurrent I-140 / I-485 Filings Effective Immediately
Effective , July 31, 2002, the INS will allow concurrent filings of Form
I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application to
Register Permanent Residence or Adjust Status). Previously, the I-485 could not
be filed until the I-140 was approved. The waiting time will no longer be
required, provided that the priority date is current in the appropriate
employment-based category. At this time, all the priority dates are current for
all the employment-based (EB) categories.
The concurrent filing procedure was authorized under an INS interim regulation
that was published in the Federal Register on July 31, 2002 and is effective
immediately, that is, as of the publication date. There is a sixty-day comment
period allowed but this does not limit the immediate ability to file
concurrently. The regulation also provides that persons who are the
beneficiaries of pending I-140s may file their I-485s prior to the approval of
the I-140 Petition. When filing their I-485s, such EB applicants will need to
include the receipt notice for the I-140 as proof of eligibility to file the
I-485 under this regulation.
Persons who file the concurrent I-140 with the I-485 will be entitled to the
same privileges as ordinarily granted to those with pending I-485s. In other
words, such people will be able to file for and obtain an Employment
Authorization Document (EAD) and advance parole. Once a person files the I-485
application, s/he will generally also have the advantage of being considered
lawfully present in the U.S. while the I-485 case is pending, even if the
non-immigrant status has expired or if s/he has failed to maintain valid legal
status.
The stated purpose of the regulation is to eliminate the delay between filing
the I-140 and the I-485. The regulation has many potential benefits and some
drawbacks. Benefits of the regulation include INS expediting the I-485
processing time; the foreign national no longer having to maintain a separate,
non-immigrant status while the I-140 and I-485 are pending; and protecting those
who have filed the I-485 in the event the priority dates retrogress with an EAD
allowing employment, etc. Drawbacks exist in instances where a person obtains
the Advance Parole from the INS after s/he had already accrued 180 days of
unlawful presence prior to filing the I-485. In such a situation, upon traveling
abroad and then attempting to reenter the U.S., the person would be subject to
the 3-year or 10-year bar. Another potential disadvantage is that, if the INS
denies the underlying I-140 petition, the person would have lost all the INS
filing fees and legal fees paid on the case.
As outlined above, this regulation will eliminate or reduce the need for filing
H1B 7th-year extensions. This will save time and money for both employers and
employees. As with all changes, it is unclear how these new rules will interface
with existing law and procedure. It is also unclear how the concurrent filings
will affect eligibility for AC21 portability, in that the I-485 will be pending
at a time when the I-140 has not yet been approved. Whether this new procedure
will expedite case processing, resulting in a change in the priority date
availability estimates also remains to be seen. We will follow this issue
closely and continue to advise MURTHYBULLETIN and MurthyDotCom readers of
developments in this important area.
|
