Z&A's Memo

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. When an H-1B or L-1 holder
comes back to the US with an Advance Parole, he is in Parolee status. Though
he / she may work for his employer without the EAD during the duration of
his / her H-1b / L-1 approval, he / she is in I-485 pending. However, he /
she may change to H-1B / L-1 status in the US by applying H-1B or L-1. In
that case, it will bring him / her back into a valid 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.

For more information on Concurrent Filing of I-140 and I-485, please click one of the following topics:
Z&A's memo
Age-Out: The Interplay of Concurrent Filing and "Child Status Protection Act"
Frequently Asked Questions about I-40 and I-485
Services that We Provide
Attorney's Fees
Articles & News on I-140 and I-485
Memo: Be Aware of Abandonment of COS and AOS Applications
The Impact of I-140/I-485 Filing on F-1 Students
The Issues Related to I-140/I-485 Filing for H-1B Holders

Adjustment of Status | Adoption | Advance Parole | Application Fees | Asylum & Removal | Business Entities | Corporate Clients | Consular Processing | Divorce | E-1 & E-2 | EAD | F-1 | Family Immigration | FAQs | Forms | Investor Visa | Immigration Glossary |
K Visa
| L Visa | Marriage | Naturalization | Non-immigrant Visas | O-1 | Processing Time | Road to Green Card | TN | Visa Bulletin

"The best way to
predict your future is
simply to create it."
- Peter Drucker.

Copyright © 1999-2005. Zhang & Associates, P.C. All Rights Reserved
New York   Houston Chicago Austin Los Angeles  
Tel: 1.800.230.7040 • E-mail: info@hooyou.comPrivacy Policy