Adjustment of Status – Employment Based

The INS implemented a rule effective on August 2002 that will speed up the process to obtain permanent residency. Under the new regulations immigrants who are being sponsored for permanent residency through employment may now apply for the immigrant visa and adjustment of status concurrently. This is a benefit that, until the new rule was enacted, was afforded only to U.S. citizens petitioning for their immediate relatives—spouse, children, or parent.

Before this rule took effect, employment-based immigrants had to complete a two-step process with INS. First, the immigrant had to file an immigrant visa petition with INS, known as the I-140 application. Once INS processed the I-140 and sent an approval to the applicant, only then could the immigrant complete the second part. This required a second filing with INS for Adjustment of Status which is also known as the I-485 application. Under the new regulations, both the I-140 and the I-485 may be filed at the same time. This saves people applying for permanent residency status several months.

The new rule allows employment-based immigrants to file both applications together when visas become immediately available. As of today, all the employment-based visas categories are immediately available. This means if you are applying for a green card through an approved labor certification, or as a nurse, or as a multinational executive you may file both applications together. The rule even allows those people who have already filed I-140’s to file the I-485 without having to wait for the I-140 to be approved.

The benefits are more than just being able to file two applications at the same time. INS has stated that work authorization and advanced parole travel documents can also be applied for with the I-140. Under the old system, one could only apply for work authorization at the I-485 stage. That meant waiting for the I-140 to be filed, reviewed, and approved before one could even file for the work authorization. Under the new regulation, work authorization can be filed for immediately. The work authorization processing will now begin with the concurrent filing and no longer at the I-485 stage.

Another benefit to the concurrent filing is that it puts a stop clock on unlawful presence. Immigration law states that any unlawful presence a person is accruing stops on the date an adjustment of status application is filed. Since INS in many regions is taking over 6 months to process an I-140, the new concurrent filing rule would not count that time as unlawful presence. Without the new rule that time period would be counted as unlawful presence.
INS’s purpose for the new rule is to improve efficiency and customer service. It has implemented a practical rule that will greatly benefit immigrants waiting to file immigrant petitions. It allows those who have already filed I-140s to now file for adjustment of status and obtain work authorization much faster than before.