Frequently Asked Questions about Concurrent Filing of I-140 & I-485

Q: I am about to file an immigration petition under the NIW. Does this new rule mean that I may also file my adjustment of status at the same time?
A: Yes, you may file your I-140 immigration petition and your I-485 application at the same time.

Q: Who is handling my case if I retain Z&A?
A: Our attorneys handle their clients' cases individually by preparing petition letters, contacting clients, and following up pending cases. That is why we have more attorneys than clerks. Our clerks' main objective is to help attorneys prepare clients' packages, and each client's package will be reviewed by one of our most experienced attorneys for final checking before sending out the package to the USCIS.

Q: I filed my I-140 two months ago and it is still pending with the USCIS. May I file my adjustment of status at this time?
A: Yes, you may file your I-485 adjustment of status application immediately along with the Receipt Notice of the pending I-140 petition.

Q: If I take advantage of this new rule and decide to file the I-140 and I-485 concurrently, may my spouse and children apply as well?
A: Yes, your spouse and unmarried children under 21 years of age may file the I-485 with you at the same time.

Q: If I may my file my adjustment of status concurrently with my I-140, may I also apply for advance parole and employment authorization?
A: Yes, you may also file for both advance parole and employment authorization.

Q: In the above situation, will the USCIS issue me the advance parole or employment authorization before they adjudicate my I-140?
A: Yes, the USCIS will issue the advance parole and employment authorization before they adjudicate the I-140.

Q: How soon will the USCIS issue me the advance parole or employment authorization?
A: It usually takes the USCIS about 3 months to issue the EAD and the advance parole.

Q: If I file my adjustment of status with my I-140, may I later choose to go through consular processing?
A: Yes, but you will need to withdraw your original I-485 adjustment of status.

Q: In my I-140 that I filed two months ago, I marked on the application form that I intend to go through consular processing. May I still apply for adjustment of status at this time?
A: Yes, but you should file an amendment of your I-140 application with the USCIS.

Q: I am in H-1b status and I am going to file for my I-485 and I-140 concurrently. I am also applying for a work permit, but if I change jobs in the future, should I apply for a new H-1B or should I use the EAD to work?
A: It is better to apply for a new H-1B. If you change jobs and work with the EAD rather than a new H-1B, you will go into adjustment pending status and are no longer in H-1B status. Thus, if the adjustment of status is ultimately denied, you may become out of status.

Q: I am in H-1b status and I am going to file for my I-485 and I-140 concurrently. I am also applying for an advance parole to return to re-enter the US after my trip abroad. Should I apply for a new H-1B visa at the US consulate or should I use the advance parole to re-enter the country?
A: It is better to apply for a new H-1B visa so that you may re-enter the US under H-1B status. If you re-enter the US with the advance parole rather than a new visa, you will still be in H-1B status. The advance parole, however, is good "insurance" to apply for just in case the US consulate does not issue you a new H-1B visa. You may then re-enter the country with the advance parole.

Q: I am in F-1 status and I am going to file for my I-485 and I-140 concurrently. I am also applying for an advance parole. Should I apply for a new F-1 visa at the US consulate or should I use the advance parole to re-enter the country?
A: It is preferable to re-enter the US under an F-1 visa, but since you have applied for the I-140 and I-485, you now have immigrant intent. Thus, it is unlikely that the US consulate will issue you a new F-1 visa. You will most likely have to use the advance parole to re-enter the country.

Q: I am in F-1 status and the I-140 that I filed three months ago is still pending. I am also about to apply for OPT. Should I apply for OPT before or after I file for adjustment of status?
A: It would probably be better to apply for OPT before filing your I-485.

Q: If I file for both the I-140 and the I-485 together, what will happen to my adjustment of status application if the I-140 is denied?
A: Your adjustment of status will be denied.

Q: Will I always be able to file the I-140 and I-485 concurrently?
A: This new rule is just an interim rule at this time; however, there is a good possibility that this rule will be extended.

Q: I am filing for NIW and I-485 now, but I do not want to apply for the advance parole or EAD at this time. May I still apply for them later?
A: Yes, you may apply for the advance parole and EAD later while your 1-485 application is pending.

Q: I applied for NIW in Texas three months ago but I have recently moved to New York. The NIW is still pending, but I am interested in applying for the I-485 now. May I do so?
A: You may file your I-485 at this time. However, since you are living in New York, you will have to file at the Vermont Services Center (VSC). If you file your I-485 at this time with the VSC, it is likely that they will also transfer your NIW from the Texas Service Center over to the VSC as well.

Q: If I apply for the I-140 together with my I-485, will the USCIS approve both of them together or will they approve the I-140 before they adjudicate the I-485?
A: The 1-140 will be processed before 1-485 adjudication.

Q: How much time will I be able to save by filing the I-140 and I-485 together?
A: We think it may save you anywhere from six months to a year.

Q: I applied for both NIW and Eb-1(b) Outstanding Researcher petitions that are still currently pending. Does this mean that I will have to apply for two adjustments of status?
A: Only one I-485 adjustment of status application will be enough.

Q: I applied for both NIW and Eb-1 (b) Outstanding Researcher petitions that are still currently pending. If I base my adjustment of status on the NIW and it is ultimately denied, will I have to file a new adjustment application?
A: Yes,

Q: What will happen to my case if I file concurrently and this new rule is ultimately changed?
A: Your filings will not be affected, even if the new rule is changed. Your case is governed by the rules upon filing; otherwise, the regulations would be considered a violation of the expost facto clause.

Q: I am applying for Outstanding Researcher and in order to obtain my green card, I must remain with my petitioning employer for 180 days after the filing of the I-485. If I file concurrently, do these 180 days begin on the day I file my I-485 even though my I-140 has not been adjudicated yet?
A: Yes.

Example: Dr. Wu is an outstanding physics professor at a well-known state university. He files his I-140 & I-485 concurrently, thus starting his 180-day clock. After 180 days have passed, Dr. Wu may leave his current employer regardless of the pending I-140.

Q: I am in J-1 status and am subject to the 2-year foreign residency requirement. I have not filed my foreign residency waiver yet. May I still take advantage of this new rule?
A: No. Although you may still file your I-140 at this time, you will need to obtain waiver of the foreign residency requirement before you may file for the adjustment of status.

Q: I am in J-1 status and am subject to the 2-year foreign residency requirement. I filed my foreign residency waiver with the State Department but have not gotten it approved yet it by the USCIS. May I still take advantage of this new rule?
A: Once you have received the approval from the State Department, you may take advantage of this new law.

Example: Ryan is in J-1 status as an exchange visitor. He has not, however, filed his foreign residency waiver. Ryan may file an I-140, but may not file an I-485 until he has obtained a waiver of foreign residency.

Example: Cristina is in J-1 status as an exchange visitor, and has filed to obtain a waiver of foreign residency. Cristina may file the I-140 & I-485 concurrently.

Q: Am I required to remain with one employer while my I-140 is pending?

If 180 days have past since filing of the I-140 and it has yet to be approved, you possess portability, meaning you may switch employers assuming your new job is "the same or substantially similar" to your original job.

Q: When does the 180-day clock begin? A: The 180-day clock begins with the filing of your I-485.

Q: What determines the same of substantially similar characteristic of two jobs? A: Examiners will look at three main factors: The description of duties with the ETA 750A or I-140, the DOT and/or SOC code, and wages. These factors should be the same or similar in order to qualify for "portability."

Q: Does geography apply to the same or substantially similar test? A: No, geography is not applied.

Example: Trinidad concurrently filed the I-140 & I-485 forms over 180 days ago. His current employer is a university in Texas where he researches nuclear physics. He would like to work for a New England University to continue this research. Because this work is "the same or substantially similar" to his work in Texas , transferring to the New England University would be allowed.

Q: Is it possible to "port" to self-employment? A: Yes, but there are some restrictions. The same or substantially similar test still applies. Furthermore, examiners will closely inspect your original job offer for validity and your sincere will to work for your original employers.

Example: Mr. Torres concurrently filed his I-140 & I-485 over 180 days ago. He chooses to leave his employer, a bricklayer, to start his own masonry venture. In these circumstances, because the work is "the same or substantially similar," Steve may port to self-employment.

Example: Mr. Wei concurrently filed his I-140 & I-485 over 180 days ago. His sponsoring employer, however, did not truly offer Mr.Wei a bona fide position of employment. Thom may not port to self-employment. Furthermore, his I-140 will likely be denied, making Thom out of status.

Q: If my I-140 immigration petition is denied, will the USCIS refund my I-485 filing fees?
A: No, the filing fees are non-refundable.

Q: What are the risks of concurrent filing of I-140 and I-485?
A: The first risk is monetary. You will not be able to get a refund for the I-485 filing fees from the USCIS if your I-140 is ultimately denied. Secondly, you may become out of status if your I-140 application is denied and you are in adjustment pending status. However, you can alleviate this risk by maintaining your status and choosing a reputable law firm experienced in filing I-140 petitions. Our firm has filed well over eight hundred I-140 petitions in EB-1 and EB-2 NIW, with an approval rate for NIW petitions at 93%+ and for EB-1A&B petitions at 98%+.

Q: Is there anything I can do to help this rule be finalized?
A: The new rule is an interim one and is under public scrutiny. Since the enforcement of the new rule will eliminate the delay of the adjustment of status application and make the immigration visa application process more efficient, both the USCIS and the applicants will benefit from it. In addition, it will reduce the likelihood that applicants will be out of status. Therefore, we strongly encourage our clients to support this new rule and write positive comments to the USCIS.

Q: How long is the USCIS accepting public comments?
A: Written comments regarding the new interim rule must be submitted on or before September 30, 2002.

Q: How can I reach the USCIS to express my concerns regarding the new rule?
A: Please submit written comments to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. You may also submit comments electronically to the USCIS at insregs@usdoj.gov. To ensure proper handing, please reference USCIS No. 2104-00 on your correspondence.

(06/13/2005)

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