Concurrent Filing of I-140 Petition and I-485 Application

• What is "concurrent filing"?

• How does concurrent filing benefit my family and me?

• If I use concurrent filing, will my I-485 be approved sooner?

• If I use concurrent filing, will my I-140 be delayed?

• Does USCIS require me to file my I-140 and I-485 forms concurrently?

• Should I file my I-140 and I-485 forms concurrently?

• Do all employment-based cases qualify for concurrent filing?

• What about green card applications based on family relationships?

• If I have already filed my I-140 petition, can I now file my I-485 application before the I-140 is approved?

• Can I use concurrent filing if I have filed more than one I-140 Petition?

• May I use the concurrent filing rule if I am in removal proceedings?

What is "concurrent filing"?

In July 2002, U.S. Citizenship and Immigration Services (USCIS) created a rule that allows "concurrent filing" of the I-140 Petition for Alien Worker and the I-485 Adjustment of Status Application (green card application). Previously, you had to wait for the I-140 to be approved first, before you could file your I-485. Now both can be filed at the same time.

Please note: the discussion on this page focuses only on certain employment-based applications for permanent residency. If you want to know about when you can file an I-130 (i.e., a different form) and an I-485 at the same time in family-based green card applications, please see the Peng & Weber Family-Based Immigration page instead.

How does concurrent filing benefit my family and me?

The concurrent filing rule provides many potential benefits. These are some of the main ones:

• File I-485 earlier. You, your spouse, and your children can file your I-485 applications (i.e., green card applications) at the same time your employer or you file an I-140 Immigrant Petition for Alien Worker. (Normally, the employer files the I-140, but you can self-file your I-140 under certain categories, such as Aliens of Extraordinary Ability and National Interest Waiver.) Also, the concurrent filing rule allows you, your spouse, and children to file your I-485s while a previously filed I-140 is still pending.
• Obtain work authorization & travel documents for self and family. When you file your (and your family members') I-485, you can also file for Employment Authorization Documents ("EADs") and Advance Parole documents. The availability of an EAD is a major benefit for spouses who could not otherwise work legally (i.e., for spouses who do not already have an H-1B, O-1, J-1, etc.). Advance Parole can be a major benefit for those who could not otherwise travel (e.g., are out of status) or who do not want to risk getting stuck overseas because of security checks or other problems at a U.S. consulate while applying for a new H-1B visa.
• Might be able to leave job earlier. Having an EAD for the principal beneficiary does not necessarily mean you can leave your current job, but in conjunction with the "portability" provision (i.e., a different rule), the beneficiary of a pending I-485 can leave his or her current employer and take a new job in a "same or similar occupational classification" after the I-485 has been pending for at least 180 days. Please note, however, that many issues related to "portability" remain unresolved, so you should be very careful before you leave your current position. If you leave too early, your (and your family members') I-485 (and everything else) may end up being denied. On the other hand, in some special cases (e.g., Aliens of Extraordinary Ability or National Interest Waiver), you might be able to leave your employer even before the I-485 is filed. Job-changing issues are complicated, however, so it it critical to get good legal advice before leaving your job any time before you get your green card.
• Stops accrual of unlawful presence. The filing of a proper I-485 stops the accrual of "unlawful presence." Although this is of no benefit to you if you have always maintained lawful status in the United States, it can be critical for those who have fallen out of status or never had legal status.

If I use concurrent filing, will my I-485 be approved sooner?

USCIS starts working on the related background checks (fingerprints and name checks) before the I-485 applications are examined more completely for green card eligibility. Therefore, the earlier you file, the earlier USCIS starts working on part of your case.

If I use concurrent filing, will my I-140 be delayed?

The answer to this question keeps changing, with the most recent answer (since December 2004) being "no." Originally, USCIS adjudicated the concurrently filed I-140 and I-485 completely independently, which resulted in no extra delays for the I-140. Then, USCIS headquarters issued a memo saying that the I-140 and I-485 would still be adjudicated independently, but that if the I-485 security checks (fingerprints and name checks) had not "cleared" by the time the I-140 was ready to adjudicate, the I-140 would be delayed until the I-485 security checks had been completed. In an undated memorandum in December 2004, however, USCIS returned to its original processing procedure: I-140 petitions and I-485 applications will be adjudicated completely separately.

Does USCIS require me to file my I-140 and I-485 forms concurrently?

No.  You can wait for USCIS to approve your I-140 petition before filing your I-485 application.

Should I file my I-140 and I-485 forms concurrently?

With all of the benefits of concurrent filing, it would seems everyone should concurrently file. Actually, it depends on your circumstances, especially on the likelihood that your I-140 will be approved and on whether you (or your family members) need EADs (i.e., work authorization) or advance parole (i.e., right to travel in and out of the country without having to obtain a new visa at a U.S. consulate overseas). If your I-140 is very likely to be approved (e.g., based on labor certification, Schedule A, or is otherwise an almost certain winner), then it would normally make sense to file concurrently. Also, if your company or your job is on shaky financial ground, you might want to file concurrently to try to reach the 180-day point at which you might be able to change jobs. On the other hand, if your I-140 is less predictable (e.g., based on weak-to-medium strength petition under Aliens of Extraordinary Ability, Outstanding Professors or Researchers, Multinational Executives or Managers, or National Interest Waiver), then you must consider that the extra filing fees for the I-485, I-765 (EAD), and I-131 (advance parole) might be wasted if your I-140 is denied. Depending on the size of your family, the cost of those government filing fees (not including attorneys fees) could easily be $2,000 or more. (USCIS will not refund these fees.) The bottom line is that concurrent filing is an important issue that requires careful analysis before deciding which approach works best for your family and you.

Do all employment-based cases qualify for concurrent filing?

No. The concurrent filing rule applies only for immigrant petitions filed under these categories:

• EB-1 category (priority workers): Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers (EB-1B), Multinational Executives or Managers (EB-1C)
• EB-2 category: Professionals holding and advanced degree or aliens of exceptional (not extraordinary) ability (either through Labor Certification, such as PERM, RIR, or standard processing, or through National Interest Waiver)
• EB-3 category: Skilled Workers, Professionals, or Other Workers (through Labor Certification, such as PERM, RIR, or standard processing).

Current filing is not allowed for these categories:

• EB-4 religious workers (I-360 petitions)
• EB-5 employment-creation investors (I-526 petitions)

For EB-4 and EB-5, the applicable I-360 or I-526 immigrant petition must be approved before the I-485 green card application can be filed.

What about green card applications based on family relationships?

The concurrent filing rule for employment-based cases (discussed on this page) does not change anything for family-based immigrants. Immediate relatives can continue to file family-based petitions in one step. Unfortunately, as with employment-based petitions, green card applications for family members (other than parents and unmarried children of U.S. citizens) could only be filed in one step if a visa number were available in their particular preference category. Even more unfortunate, this has not happened in the recent past and is not likely to happen any time soon. Thus, for most family-based cases, you have to wait for the I-130 petition to be approved before filing the I-485 green card application.

If I have already filed my I-140 petition, can I now file my I-485 application before the I-140 is approved?

Yes. Anytime after you have received a "Receipt Notice" for your I-140 petition, you may file your I-485 green card application. You will have all of the same advantages (and risks) as any other concurrently filed I-485 application.

Can I use concurrent filing if I have filed more than one I-140 petition?

Yes. If one of your I-140 petitions is approved, the USCIS will then adjudicate your I-485 application based on the approved I-140. This is one of those areas in which you want to make sure you get good advice about your options. For example, if you are from China, India, or Philippines and your employer files an I-140 petition under EB-3 based on an approved EB-3 labor certification, you will have to may have to wait for an EB-3 immigrant visa to become available. In such a circumstance, if you also have an I-140 filed under a first-preference (EB-1) category, such as Aliens of Extraordinary Ability (EB-1A), Outstanding Professors or Researchers, or Multinational Executives or Managers, or under a second-preference (EB-2) category, such as a National Interest Waiver (NIW), you may be able to get your green card several months to several years earlier, depending on how far the EB-3 category retrogresses.

May I use the concurrent filing rule if I am in removal proceedings?

Yes.  If you are in removal proceedings either before an immigration judge or the Board of Immigration Appeals, and are filing an I-140 or already have an I-140 pending, you may file your I-485 either with the judge or with the Board.  The new rule does not automatically grant you a stay of removal proceedings or constitute a motion to reopen or reconsider. Your I-485 application is added to the Record of Proceedings and you must make a motion to have the Board adjudicate the I-485, or to have it remanded to the immigration judge for adjudication.