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  The Concurrent Filing of Form I-485
Adjustment of Status with Form I-140 Petition

1. The Concurrent Filing of Form I-485 for Adjustment of Status with Form I-140 Petition

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 also 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 for status adjustment.

When you send Form I-140 application to USCIS, you can also send your I-485 for Adjustment of Status 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 status adjustment 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 petition will be first adjudicated as separate from I-485 for adjustment of status , 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 status adjustment 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 adjustment of status 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 status adjustment 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) sometimes. 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.

4. What May Happen for my Form I-485 application, if My Form I-140 Is Rejected? 

The concurrent Form I-140 and Form I-485 petitions are supposed to permit the alien applicant a number of benefits, including availability of work permit card (EAD), advance parole for international travel, and similar benefits to the accompanying family members. 

Under the U.S. immigration law, the Form I-485 application remains intact unless it is denied as separate from the denial of Form I-140 petition. To prevent the abuse of concurrent Form I-140 and Form I-485 filing, the USCIS instructed its Service Centers to deny all the accompanying applications including Form I-485, Form I-485A, From I-765, and Form I-131 simultaneously, when the USCIS Service Centers deny the underlying Form I-140 petition. 

5. The Consular Processing for an Immigrant Visa After Form I-140 Approval

The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. When an immigration visa numbers are available for your classification, the National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation. The supporting documentation may include:

  • a copy of Notice of Approval;
  • a copy of your filed I-140 petition;
  • a copy of Notice of Receipt of the I-140 petition;
  • a copy of your valid passport;
  • any criminal history records;
  • a copy of your birth certificate;
  • a copy of your marriage certificate;
  • copies of birth certificates of your children and spouse.
After your fees and supporting documentation are received by the National Visa Center, they will send you a packet of forms and instructions to your foreign address. Thereafter, after submission of those forms, the U.S. consulate near your foreign address will send you an appointment letter including instructions for the medical exam, and it will indicate when you must appear at a U.S. consulate for an interview. After the interview, the U.S. consular will review your application, and decide either granting your visa or requesting the USCIS to reconsider your petition.

6. I Have Accrued more than 2 Months of Unlawful Stay in U.S, Will I Be Eligible for Form I-485 Application?

If you are currently in United States unlawfully, then it is unlikely you are qualify to file USCIS Form I-485 application for adjustment of status inside U.S. The Form I-485 application is for people who has valid visa or status in the United States.

If you came to U.S. on a temporary visa, such as a tourist visa, H-1B or L1 visa, F-1 visa, J1 exchange visa, or other visa categories, you are required to either leave the U.S. before your authorized stay expires, or successfully apply for an extension of your stay. You can find the date that you are expected to leave U.S. on the I-94 card that the U.S. border official placed in your passport when you entered U.S.

If you apply for a visa or status renewal, you should make sure to submit the renewal application, such as Form I-539 application, to U.S. Citizenship and Immigration Services (USCIS) before the date shown on your I-94 card. Once you have submitted your renewal application, you can lawfully stay in the United States while awaiting a decision.

If you become eligible for Green Card application for U.S. permanent residence while you are on a nonimmigrant visa, you are then able to submit Form I-485 application for adjustment of stats before your visa expires, and receive a Green Card. However, if your visa runs out before you submit your Form I-485 application for adjustment of status, you are considered to be in the United States unlawfully, and you may not be apply for adjustment of status inside United States.

The U.S. immigration law has created various penalties for people who stay in U.S. unlawfully, such as not ineligible to apply for a Green Card from within the United States. But you may be able to go to a U.S. consulate in your home country and complete your Green Card application process there - referred to as the "consular processing" procedure.

But there are other penalties for unlawful stay in Unoted States. If you have spent more than 180 days in the United States unlawfully, and then leave U.S.,  such as for an immigrant visa/green card interview, you will be required to spend three years outside the United States before returning. If your unlawful stay was for one year or more, than you face a ten-year bar on returning.


 

 


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