The Immigration and Naturalization Service today released a long-awaited interim rule allowing for I-140 employment-based green card petitions to be filed at the same time as adjustment of status applications. Previously, the I-140 had to have first been approved before an adjustment of status application could be submitted. By consolidating the process, employment-based green card applicants will be able to process green card applications much more quickly and will also have an easier time maintaining their status when they run out of time on non-immigrant visas. It also is good news for spouses and children of I-140 applicants who can now get work documents much more quickly. The rule will not affect cases where green cards are sought at US consulates and it will only be available as long as there is no backlog in the visa quotas for the various employment-based categories. As of today, there are no backlogs in any employment-based green card categories. However, this has not always been the case and it is very possible backlogs could return.
What is concurrent filing?
Concurrent filing means that an individual can file an I-140 petition to be classified in an employment-based green card category at the same time as an adjustment of status petition which generally focuses on whether an applicant is admissible to the US (e.g. there is a criminal history, communicable disease, etc.). The applicant must still prepare the two petitions in the same way as before, but they can now be submitted together. Previously, the I-140 had to be approved before an adjustment application could be submitted. In order to be eligible to file an adjustment of status application, however, a visa number must be immediately available.
How do I know if a visa number is immediately available?
The State Department publishes a bulletin each month telling where in the queue it is for each of the family and employment based green card categories. You can find this chart on our web site at www.visalaw.com/visabulletin.html.
Does the new rule apply to all employment-based green card categories?
No. The rule only covers EB-1, EB-2 and EB-3 green cards. It does not cover the EB-4 category (which includes, among other groups, religious workers) and the EB-5 category (for large investors).
What if I have an I-140 that is already pending?
There is good news to report here. The INS will allow an adjustment application to be filed for people with pending I-140s. The applicant or his lawyer should submit the adjustment package together with an I-797 receipt notice for the I-140 petition.
What if a visa number was not available when the I-140 was filed, but becomes available in the middle of the process?
As soon as a visa number is available, an applicant can file an adjustment package along with a filing receipt for an I-140 petition that is pending.
What if I am in deportation or removal proceedings?
In these cases, you must file an adjustment application with the immigration court and not with the INS.
What if my I-140 has been denied and I am appealing the case to the Board of Immigration Appeals?
In this case, an adjustment application must be filed directly with the Board of Immigration Appeals.
Will I still be subject to deportation or removal if I file an adjustment application under this new rule with the Immigration Court or the Board of Immigration Appeals?
Yes. The BIA will only consider filing an adjustment application for placement into the Record of Proceedings. It will merely make it faster for the BIA or the INS to approve the adjustment application if the appeal is won. The same is true for the Immigration Courts.
Can I apply for an employment authorization document at the same time I file the I-140?
Yes. As part of an adjustment of status application, you can file an I-765 application for an employment authorization document. This generally takes two to three months at the INS service centers.
Can I apply for a travel document?
Yes. As part of an adjustment of status application, you can file an I-131 application for advance parole in order to travel freely in and out of the US while an adjustment of status application is pending. Note, however, that many I-140 applicants are subject to bars on reentering the US as a result of accruing unlawful status in the US. Be sure to check with an immigration lawyer to make sure you are not subject to these reentry bars.
Can physicians applying for national interest waivers take advantage of the new rule?
Yes. The only difference for physicians is that the INS will now provide a notice of the special requirements in these cases at the time the I-140 is received rather than at the time the adjustment of status application is received.
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