1. The Concurrent Filing of Form I-485 with Form I-140

It is permissible to file the Form I-140 (Immigrant Petition for Alien Worker) and Form I-485 (Application to Register Permanent Residence or Adjust Status) at the same time. It is possible to file these two forms with other related forms together. This is a change over prior law that required the I-140 approval before one could file the I-485.

When you send Form I-140 application to USCIS, you can also send your I-485 application at the same time, as a concurrent filing of Form I-485 with Form I-140. The benefit of I-140/I-485 concurrent filing is the eligibility for EAD (Employment Authorization Document) and Advance Parole.

The USCIS accepts the I-485 adjustment of status applications filed concurrently with the I-140 employment-based (EB) immigrant visa petitions from immigrant visa beneficiaries in the EB-1, EB-2 and EB-3 categories whose priority dates are current. It does not apply to the other EB categories such as the EB-4 (Special Immigrants, including religious workers) and the EB-5 (Employment Creation immigrants, more commonly called investors).

By filing I-485, some applicants will be able to stop running of unlawful presence even though they cannot remove the period of unlawful presence before filing I-485. If you have already filed I-140, you may file I-485 immediately by attaching an I-140 Receipt Notice. For I-140 and I-485 concurrent application, the USCIS will process the I-140 application and I-485 application separately. 

2. The USCIS Adjudication and Process of the Concurrent I-140/ I-485 Applications

Your I-140 will be first adjudicated as separate from I-485, and the USCIS  will issue receipt notice as if I-140 was filed independently. Before your I-140 petition eligibility review is completed or I-140 is approved, the I-485 application will remain on hold. The adjustment of status applications for the spouses and children (unmarried and under 21 years old) of the principal beneficiary will also be accepted. 

An applicant for adjustment of status will need a birth certificate or equivalent documentation to file the I-485 application. If the applicant does not have the document, she or he should take the necessary steps to obtain them from the home country, and this may take some time. If the documents are not in English, translations will be required in addition to the documents. Adjustment applicants also must undergo an immigration medical exam from an authorized civil medical doctor. 

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 and an Advance Parole. Once a person files the I-485 application, she or 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 he has failed to maintain a valid legal status.

The processing times of I-140 petition and I-485 tend to be inordinate due to a number of factors. Accordingly, depending on the date when the I-140 or the I-485 was filed, the processing and adjudication of such cases are handled differently. In order for the I-485 adjudication to be completed in the same pace as the I-140 adjudication, the USCIS Service Centers will accelerate the name check and fingerprint job. 

3. Other Issues for a Concurrent Application Case

In the past, fingerprinting was not scheduled until it passed a few months of filing of I-485 application because of the delay and backlog of the I-485 adjudication schedules, but the fingerprinting scheduling policy has changed since the concurrent adjudication policy was released. Now, the fingerprinting is scheduled early, particularly in the concurrently filed cases, in order to achieve the concurrent adjudication policy. 

As a consequence of such policies, the applicants of concurrent I-140/I-485 tend to take the benefits of these policy changes and obtain adjudication earlier to avoid the circle of re-fingerprinting and re-name check processes. 

The USCIS confirmed that the Service Centers will not process adjudication of EAD and Advance Parole in the I-140/485 concurrent filing cases, unless the Service Centers complete the review of eligibility of I-140 petition. 

If an applicant is statutorily ineligible, USCIS will deny the I-140 petition without even issuing a RFE (Request For Evidence). If this happens, the Service Center will also deny I-1485, I-765 EAD application and I-131 Advance Parole. The RFE will be issued if the evidence of eligibility is not included at the time of concurrent filing. This is a situation where insufficient evidence is submitted and the Service Center is unable to determine the eligibility of the I-140 petition. 

If the USCIS Service Center determines that the I-140 petition is eligible and the proper evidence for determination of eligibility are found in the filing, the Service Center will issue EAD and Advance Parole.

 

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