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Issues To Consider In Deciding Whether To File An Immigrant Petition And Adjustment Of Status Application Concurrently

Introduction

In July 2002, the Citizenship and Immigration Service (CIS) issued regulations that now permit I-140 Immigrant Petitions and I-485 Adjustment of Status Applications to be filed concurrently. Until July 2002, I-485 Adjustment Applications could be filed with the CIS only after the CIS had approved the underlying I-140 immigrant petition. In addition, foreign nationals who are the beneficiaries or pending I-140 Petitions may also file their I-485 Adjustment Applications without waiting for an approval of the I-140 Petition.

The CIS has said that concurrent filing will decrease the overall processing time for its adjudication of these kinds of cases. Until the CIS adjusts its internal adjudication and case processing procedures to conform to the concurrent filing rules, employers and employees choosing to file concurrent Immigrant Petitions and Adjustment Applications might not see as significant improvements in total processing times as they might otherwise expect. The options available to employees can be divided into three groups: (1) file concurrently; (2) file separately; and (3) choose Immigrant Visa processing at a U.S. Consulate instead of Adjustment of Status through the CIS.

What are the Advantages to Filing Concurrently?

In some cases, there may be several advantages to filing an Immigrant Petition and an Application for Adjustment of Status concurrently.

First, under the immigration law, an employee may continue with an employment-based Adjustment Application even if the employee moves to a new position as long as (i) the new position is "within the same or similar occupational classification" and, (ii) the I-485 Application has been pending with the CIS for at least 180 days. The I-485 portability (as it is known) allows employers and/or employees to relocate to different facilities or move into new positions within the same or similar occupational classification without needing to begin the entire Green Card process again. If an employer and employee file an Immigrant Petition and an Adjustment Application concurrently, the Adjustment Application will meet the 180-day mark more quickly than if the employer files its Immigrant Petition separately, waits for an CIS adjudication, and then the employee files his or her Adjustment Application.

Second, concurrent filing will allow the CIS to issue Employment Authorization Documents (EADs) and Advance Parole Travel Documents sooner if these applications are filed with the Immigrant Petition and Adjustment Application. The CIS has not yet determined whether the Immigrant Petition will first need to be adjudicated before EADs and Advance Paroles are issued, but concurrent filing may improve processing times.

Third, if the foreign national is close to reaching his or her maximum number of years permitted in H-1B or L-1 status, filing an Adjustment Application will help to protect his or her ability to remain in the U.S. Once an Adjustment Application has been filed with the CIS, the applicant is authorized to remain in the United States until the CIS decides the Adjustment Application.

What are the Disadvantages to Filing Concurrently?

Employers and employees should consider a few situations where they may wish to file an Immigrant Petition and an Adjustment Application separately.

First, not all Immigrant Petitions are created equal. While some have a high likelihood of success, others may be more complex and may leave more room for the CIS to challenge the petition. For example, Immigrant Petitions filed for multinational managers often have a high rate of success if the employee has already been classified as an L-1A Manager in a prior nonimmigrant proceeding. However, Immigrant Petitions filed in the Extraordinary Ability or Outstanding Researcher categories or seeking a National Interest Waiver may be more likely to draw a challenge from the CIS. For petitions with a greater risk of opposition by the CIS, employees may wish to delay filing Adjustment Applications to avoid an expenditure of time and money if there is a higher degree of uncertainty about whether or not the Immigrant Petition will be approved. In addition, if the employee's underlying Nonimmigrant Status is intent sensitive, such as TN or F-1, the Nonimmigrant Status that the employee holds may be at risk if CIS denies the Immigrant Petition.

Second, filing an Immigrant Petition and Adjustment Application separately gives the employer and employee greater control over when the Adjustment Application will be adjudicated. For example, because a Labor Certification Application is forward-looking, an employer may file a Labor Certification Application for a position (and at a salary) that it anticipates the employee will be in at the time that the employee becomes a permanent resident. Because CIS processing times are always in flux and difficult to predict, the employer may wish to proceed with filing its Immigrant Petition, but delay the filing of the Adjustment Application. Filing separately in this situation offers greater control over the Adjustment Application filing so that the time frame is consistent with an employer's expectations about when the employee will move into the offered position.

Concurrent filing may be beneficial in many situations. We encourage employers and employees to consider their particular circumstances and whether current filing is an advantageous option in the individual situation.
 

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