Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I filed a Labor Certification several years ago and it has just been certified. Now I am told that I must file the I-140 or Employment based petition. Additionally, I am told that only afterwards can I file the Adjustment of Status Petition. I urgently need to work and to leave the U.S., but cannot because it will take a considerable amount of time to process the I-140. Is there anything I can do to speed up the process?

Answer: Yes. You are very fortunate as new regulations were just passed by the Immigration and Naturalization Service which allow concurrent filings in certain situations for the I-140 Employment Petition and the I-485 Adjustment of Status Applications.

Question: Why Is the Service Issuing This Rule?

Answer: This interim rule is necessary to improve both efficiency and customer service, and to support the Service’s long-established goals for filing of petitions and applications via direct mail. Currently, as you are aware, an alien can only submit Form I-485 after the alien has had his or her underlying visa petition, Form I-140, approved, and when an immigrant visa is immediately available. Due to these requirements there has been a delay from the time the Form I-140 is filed with the Service until the alien worker, for whom a visa is otherwise immediately available, can properly file Form I-485 with the Service. The most practical and efficient way to eliminate this delay is to permit concurrent filing of Form I-485 together with Form I-140 in cases in which a visa is immediately available. Concurrent filing eliminates the delay that takes place between approval of Form I-140 and the subsequent filing of Form I-485. This interim rule provides for such concurrent filing.

Question: Does This Interim Rule Change or Amend the Substantive Eligibility Requirements for the Visa Petition or Permanent Residence Applications?

Answer: No, this interim rule does not change the current substantive requirements governing eligibility for and adjudication of the Form I-140 nor for the Form I-485.

Question: Who Is Eligible to File Forms I-140 and I-485 Concurrently?

Answer: Forms I-140 and I-485 may be filed concurrently only when an immigrant visa number is immediately available. This interim rule does not change the existing requirement that a visa number must be immediately available before an alien can apply for permanent resident status.

Question: If a Form I-140 Visa Petition Previously Filed for an Alien Worker Is Still Pending with the Service on or After the Date this Rule was published, and a Visa Number is immediately available, can the alien file Form I-485?

Answer: Yes, upon issuance of this rule, an alien whose Form I-140 visa petition is pending with the Service may file Form I-485, together with associated forms and fees, with the Service office at which the visa petition was filed. When filing Form I-485, the alien will be required to attach a copy of the Form I-797, Notice of Action, establishing previous receipt and acceptance by the Service of the underlying Form I-140 visa petition. When an immigrant visa is immediately available, Form I-485 may be filed either concurrently with the Form I-140 or anytime thereafter.

This is a very nice development from the Immigration and Naturalization Service. It will make both their adjudication more efficient, and persons whom want to work sooner on employment based visas will be able to do so considerably quicker than before.

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