FAQs

Concurrent Filing of Adjustment of Status with I-140

When did this rule take effect?
The new rule was effective on July 31, 2002

What does this rule change?
Prior to this change, an individual had to wait until their visa petition (Form I-140) had been approved by the CIS before they could proceed to the next step of filing for Adjustment of Status (AOS; I-485). This change now allows the foreign worker to file their AOS applications concurrently with the I-140, or if the I-140 is already filed, submit their AOS applications while the I-140 is pending. Naturally, the AOS can still be filed after the I-140 is approved as has always been the case. This rule does not apply in cases where the individuals chooses consular processing to immigrate rather than adjustment of status.

What is the benefit of concurrent filing?
The concurrent filing allows the CIS to adjudicate both the I-140 visa petition AND the AOS together. This will save the CIS resources while speeding up the overall process. It will eliminate the several months delay for the I-140 to be processed separately. CIS hopes this will enable them to provide better customer service as well as save them resources. However, the AOS application usually takes longer to adjudicate and CIS will likely complete adjudication of the I-140 petition prior to the AOS.

Is there any disadvantage to concurrent filing?
If the I-140 is not already approved, the filing of the AOS is a conditional filing. That means that unless the I-140 is approved, the AOS is not considered. This has always been the rule when concurrent filings were allowed. Therefore, if the I-140 is denied, the AOS will also be denied and may require re-filing another AOS in the future if an I-140 is later approved under another option. If the I-140 is already approved, then that part of the process is resolved. With concurrent filing there is always the potential of an I-140 denial. With premium processing now available for most I-140 petitions it may be in the best interest to obtain an approved I-140 before filing for adjustment of status.
If the I-140 is denied, in addition to the AOS denial all ancillary applications will be denied (for example, I-765 (EAD) and I-131 (advance parole)). If there is a denial it could have affect an individual’s nonimmigrant visa status.

What other issues are there for me to consider in filing for AOS concurrently?
The usual considerations still exist. If you are single but planning to marry, filing for AOS should be considered carefully. If the AOS is approved before you marry, you will not be able to bring your spouse here without a long wait. If you are married, then applications can be filed for the spouse and any other dependent children. If you are running out of time on your temporary visa such as an H-1B, then filing concurrently for AOS may be extremely beneficial. International travel may also be easier with an advance parole obtained based on the AOS. However, Immigration and Customs Enforcement has recently taken the position that an applicant for adjustment of status is not in status, therefore, it may be beneficial to remain in H or L status (if possible) while the AOS application is pending.

What additional benefits do I get when I file for AOS?
You will be able to obtain employment authorization for you and your dependents while the AOS is pending. If necessary, you can obtain an advance parole which will permit you to travel internationally without a visa. You will be able to get out of the temporary visa category and switch to the EAD (employment card) and AP (Advance Parole). However, if you allow your temporary visa status to lapse while processing AOS, and the AOS is ultimately denied, you will have to depart the U.S. and re-enter to go back into a temporary visa status. Also, if you or your spouse work pursuant to an employment authorization document you will no longer be in valid H or L status. However, Immigration and Customs Enforcement has recently taken the position that an applicant for adjustment of status is not in status, therefore, it may be beneficial to remain in H or L status while the AOS application is pending.

I want to do Consular Processing.  Does this rule help me?
Not at all. If you still want to pursue CP, you will have to wait until your I-140 is approved, then proceed through the usual process. This rule does not give you any benefits in the area of CP.

How long will processing take for my AOS under this process?
No one can ever answer this question. The processing times at the CIS (and consulates) vary constantly. However, while the AOS is pending, the applicants may live, work and travel legally.

Will the 180 day rule for AOS apply for concurrent filings?
The CIS has not issued regulations to describe the interaction of the 180 day rule and concurrent filings. The 180 day rule (actually a law) provides that a person who has their I-485(AOS) pending for more than 180 calendar days, and thereafter leaves the job that was the basis for their green card application would still be allowed to continue with the AOS. The only condition to continue with the AOS would be for that individual to continue to work in a "same or similar occupation". The CIS has provided a written memorandum and liaison meetings answers to provide guidance on how they are currently interpreting this 180 day rule. The CIS has stated that an approved I-140 will remain valid even if an individual changes jobs or locations as long as the form I-485 has been filed and remained unadjudicated for 180 days or more as measured from the I-485 receipt date. In cases in which the I-140 hasn't been approved, but the I-485 has been pending for 180 days or more, CIS is suppose review the I-140 petition to determine if the preponderance of the evidence establishes that it was approvable or would have been approved if adjudicated within 180 days, then CIS should continue adjudication of the I-485 under the portability provisions. However, it is recommended to have an approved I-140 petition prior to utilizing the portability provision.

What should I do?
The hardest question of them all. Based on current action taken by the CIS, you should not rely on the 180 day rule until the I-140 has been approved and your I-485 has been pending for 180 days or more You can file for AOS under the concurrent filing rule. If you plan to marry in the future, you will likely want to let the I-140 be processed separately and then proceed with AOS once you are married and your spouse is here. If the I-140 is based on one of the exceptions to the labor certification requirement such as extraordinary ability, outstanding researcher or national interest waiver, you may wish to wait until the I-140 is approved since these petitions are more difficult and reviewed more closely by CIS. The company may elect to have the petition filed pursuant to premium processing. This would remove the possibility that your AOS would be denied with the I-140 and the fees and costs lost. These are verify difficult decisions to make and there are no “right” answers.

I want to proceed with concurrent filing.  What do I do now?
When we send an email to you asking whether you want to choose AOS or CP you can send us an email of your wishes. We will send you an AOS questionnaire (If you have not already received one) which we will require you to complete and return to us. If you previously have done this, let us know in your email that this has already been completed and returned to us. Once we have your authorization and the AOS questionnaire, we will begin work on your case. You will be contacted by a member of our firm with further instructions and guidance. 

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