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As you may be aware, on July 31, 2002, the INS issued interim regulations on the simultaneous filing of immigrant work petitions (I-140) and adjustment of status applications (I-485). The new regulation provides important benefits for employment-based applicants seeking permanent residence in the United States. Two principle benefits of concurrent filing include issuance of work authorization and travel privileges without waiting for an approval of the I-140 petition, and avoiding the accumulation of unlawful presence in the U.S. during the adjudication of the immigrant work petition. This is important issue for many employees including healthcare workers who are in the U.S. who would otherwise accrue unlawful presence while waiting for an approved I-140 petition.
Concurrent filing raises an important question about the 180-day portability rule set forth in the American Competitiveness in the Twenty-First Century Act (AC21):
ß AC21 includes a provision that allows an applicant to change employers during lengthy adjustment of status adjudications. For pending adjustment applications that have been filed and remain unadjudicated for 180 days or more, applicants are allowed to substitute a new sponsor and offer of employment, so long as the position is in the same or similar profession.
ß So, how will concurrent filings operate in the context of I-485 portability? The INS has indicated that portability can only be used by adjustment applicants who have approved I-140 petitions. But the INS has stated they will not adjudicate I-140 petitions until the I-485 is evaluated. Applicants who have filed concurrently may not have an approved I-140 during a pending adjustment, and therefore would not be eligible for the portability benefits of AC21.
This analysis could change in the near future after final regulations are implemented. While it might appear that concurrent filing is for everybody, there are many instances where applicants may want to reconsider. You should consult with our office before making the decision to concurrently file an immigrant work petition and adjustment of status application.
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