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There
has been a new and exciting development in immigration law that affects many of
aliens. Effective July 31, 2002, the USCIS published a long-awaited rule
allowing the concurrent filing of an I-485 adjustment of status application with
an I-140 immigration petition (EB-1, EB-2, and EB-3). In the past, the USCIS required
an approval of the I-140 petition before it would allow a beneficiary to apply
for permanent resident status.
The only restriction is that the visa number
must be immediately available for the category in order to file the I-485 application.
Since visa numbers are available to all EB-1, EB-2 and EB-3 categories, any person
who is a beneficiary (or applicant) of an I-140 petition which has already been
filed is now eligible to file I-485 application. Family members will be eligible
to file I-485 along with the principal alien. Additionally, applications for Employment
Authorization (EAD) and Advance Parole may be filed with the I-485 application.
For all pending I-140 petitions, the beneficiary (or applicant) may file
his or her I-485 adjustment of status application immediately by submitting the
Receipt Notice of the pending I-140 with the I-485 application. The new
rule offers tremendous benefits to the aliens who are applying for green card
through employment-based petitions. A. Benefits of the New Rule 1.
Increased Efficiency for the USCIS The USCIS is implementing this new rule in
order to improve both efficiency and customer service, and to eliminate the delay
of the adjustment of status processing. As noted above, previously aliens applying
for their "green cards" in the categories of EB-1, EB-2 and EB-3 could
not file I-485 adjustment of status applications until the I-140 was approved.
This caused at least an average delay of 6 month in adjudicating the adjustment
of status application, already a long process. This new rule means that applicants
for adjustment of status will benefit from a smooth, expedited process, and should
receive their permanent resident status earlier than they otherwise would. 2.
AC21 Portability For all those aliens who are beneficiaries (or applicants)
of employerpetitioned I-140s, namely, EB-1b(Outstanding Researcher or Professor),
EB-2 (except NIW) and all EB-3, current immigration law allows them to change
employers 180 days after the DATE of filing of I-485 adjustment of status. Permitting
concurrent filing of the I-485 should allow those persons to change jobs, if they
wish, at an average around 6 months earlier than past. Although the portability
rules have not been construed yet with the new rule on concurrent filing, the
plain language of the portability regulations permits this new and beneficial
result. 3. Reducing the Unlawful Presence Risk As a general rule,
an alien who has been out of status (unlawfully present in the U.S.) for 180 days
is not eligible for adjustment of status under an employment-based immigration
petition. Further, being out of states for 180 days or more results in a three-year
bar to reentering the United States. If an alien loses non-immigrant status while
the I-140 is pending, the alien may not be eligible for I-485 adjustment. As just
one example, H-1B status is dependent on continuing to work for the sponsoring
employer. As we have seen during the recent economic downturn, if an H-1B employee
is laid off, their status immediately terminates as of the day of the layoff (not
even as of the last pay date of the severance package). Filing an I-485 application
will immediately offer the alien legal status during the entire time the application
is pending with the USCIS. Therefore, filing the I-485 concurrently with the I-140
will immediately offer the alien a way to avoid the unlawful presence risk. 4.
Employment Authorization An alien is now also allowed to filing application
for Employment Authorization at the time of filing I-485 and I-140. This will
give immediate benefits for the alien in many folds: a. If the Alien is
an I-140 self-petitioner (EB-1(a) and EB-2 NIW), upon the receipt of the employment
authorization, the Alien may choose any employer he or she wishes so long the
employment is in consistent with the petition.
b. If the Alien is an employer-sponsored
I-140 beneficiary (EB-1(b), EB-2 (except NIW) and EB-3), the-alien may using the
EAD to seek other employment after 180 days from the filing of I-485.
c. Family
members are allowed to file applications for Employment Authorization (EAD) at
the same time, which is extremely important for those family members who are ready
to accept employment but can not get sponsorship for temporary working visa.
5. Advance Parole Alien of family members who are filing I-485 according
with the new rule can also file applications for Advance Parole. Advance Parole
allows the alien to travel outside the United State and return with a parolee
status while the I-485 is still pending. For those who wish keep their independent
status (H or L) but without a valid visa on passport, they may apply for advance
parole as a safeguard for their return in the event that their visa application
(for H or L) at the U.S. consulate abroad is denied. Normally, such a denial would
bar their reentry into the U.S. B. Potential Legal Issues The
most obvious legal issue is "what happens if the I-140 is denied?" Our
firm has filed well over a eight hundred I-140 petitions in EB-1 and EB-2 NIW,
and, for example, our approval rate for NIW petitions is 93%+ and for EB-1A&B
petitions is 98%+. That being said, concurrent filing of the I-485 with the I-140
does not guarantee the approval of the I-140. Further, the I-485 is dependent
on the approval of the I-140. If a person solely relies on I-485 pending status,
and the I-140 is denied, the alien may be out of status. Therefore, it is strongly
recommended that aliens should try to keep their independent status, such as H
and L, as long as possible while at the same time filing their I-485. In addition,
readmission into the U.S. by the using of Advance Parole causes the loss of non-immigrant
status, and one who enters as an I-485 pending parolee is fully dependent on the
approval of the I-485. Moreover, by using the employment authorization benefit
from the I-485 pending status, an alien may lose non-immigrant status. C.
Conclusion This rule is only an "interim" rule, and is currently
undergoing public comment for 60 days. Therefore, we are urging all our clients
to take advantage of this interim rule quickly, as this provision may be rejected
when the final rule is published after the 60- day comment period. Allowing concurrent
filing of the I-485 with the I-140 offers a great benefit to aliens in the green
card application process. Filing an I-485 adjustment of status application will
not jeopardize alien's temporary working status such as H and L, but gives benefits
such as taking full advantage of the "Portability Rule," employment
authorization for family members, advance parole benefits, and reducing the risk
of losing status as a result of an economic downturn. To safeguard the status,
we recommend that aliens should keep H or L independently status as long as possible
while taking advantage of the concurrently filing rule. However, you should discuss
the particulars of your case with an attorney before you go forward to fully understand
the benefits, as well as any risks, that may be involved for you. (Written
by Jian Zhou, Esq. and Amy
Tehauno, Esq.) (08/01/2002) For more immigration
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