The following is an INS regulation permitting concurrent filing of I-140 employment-based visa petitions and I-485 applications for adjustment of status.
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 204, 245 and 299
[INS No. 2104-00]
Allowing in Certain Circumstances for the Filing of Form I-140
Visa Petition Concurrently With a Form I-485 Application
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
SUMMARY: The current Immigration and Naturalization Service (Service)
regulations provide that an alien worker who wants to apply for
permanent resident by filing the appropriate Form I-485, Application to
Register Permanent Residence or Adjust Status, cannot do so until he or
she obtains approval of the underlying petition, Form I-140, Immigrant
Petition for Alien Worker. This procedure has resulted in an
unnecessary delay for certain alien workers. This interim rule amends
the Service’s regulations by allowing the Form I-485 to be filed
concurrently when a visa is immediately available, thereby improving
the efficiency of the process as well as customer service. This interim
rule also provides that, if an employment-based visa petition is
pending on July 31, 2002, the alien beneficiary may obtain the benefits
of concurrent filing, but only if the alien beneficiary files the Form
I-485, together with the applicable fee and a copy of their Form I-797,
Notice of Action, establishing previous receipt and acceptance by the
Service of the underlying Form I-140 visa petition. Further, this
interim rule will allow the alien worker to apply for employment
authorization using Form I-765, Application for Employment
Authorization, and for advance parole authorization using Form I-131,
Application for Travel Document, while the Form I-485 is pending.
DATES: Effective date: This interim rule is effective July 31, 2002.
Comment date: Written comments must be submitted on or before
September 30, 2002.
ADDRESSES: Please submit written comments to the Director, Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure
proper handling, please reference INS No. 2104-00 on your
correspondence. You may also submit comments electronically to the
Service at firstname.lastname@example.org. When submitting comments electronically
please include the INS No. 2104-00 in the subject box. Comments are
available for public inspection at the above address by calling (202)
514-3291 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Morrie Berez, Assistant Director,
Business and Trade Services Branch, Immigration and Naturalization
Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone
Why Is the Service Issuing This Rule?
This interim rule is necessary to improve both efficiency and
customer service, and to support the Service’s long-established goals
for filing of petitions and applications via direct mail. Current
regulations at Sec. 204.5(n), Sec. 245.1(g) and Sec. 245.2(a)(2) state
that an alien can only submit Form I-485 after the alien has had his or
her underlying visa petition, Form I-140, approved, and when an
immigrant visa is immediately available. Due to these requirements
there has been a delay from the time the Form I-140 is filed with the
Service until the alien worker, for whom a visa is otherwise
immediately available, can properly file Form I-485 with the Service.
The most practical and efficient way to eliminate this dalay is to
permit concurrent filing of Form I-485 together with Form I-140 in
cases in which a visa is immediately available. Concurrent filing
eliminates the dalay that takes place between approval of Form I-140
and the subsequent filing of Form I-485. This interim rule provides for
such concurrent filing.
Does This Interim Rule Change or Amend the Substantive Eligibility
Requirements for the Visa Petition or Permanent Residence Applications?
No, this interim rule does not change the current substantive
requirements governing eligibility for and adjudication of the Form I-
140 nor for the Form I-485.
Who Is Eligible To File Forms I-140 and I-485 Concurrently?
Forms I-140 and I-485 may be filed concurrently only when an
immigrant visa number is immediately available. This interim rule does
not change the existing requirement that a visa number must be
immediately available before an alien can apply for permanent resident
status. This interim rule simply applies to aliens who are classifiable
under sections 203(b)(1), (2), and (3), of the Immigration and
Nationality Act, allowing them to file the Forms I-140 and I-485 at the
same time, but only when a visa is immediately available.
If a Form I-140 Visa Petition Previously Filed for an Alien Worker Is
Still Pending With the Service on or After the Date This Rule Is
Published, and a Visa Number Is Immediately Available, Can the Alien
File Form I-485?
Yes, upon issuance of this rule, an alien whose Form I-140 visa
petition is pending with the Service may file Form I-485, together with
associated forms and fees, with the Service office at which the visa
petition was filed. When filing Form I-485, the alien will be required
to attach a copy of the Form I-797, Notice of Action, establishing
previous receipt and acceptance by the Service of the underlying Form
I-140 visa petition. When an immigrant visa is immediately available,
Form I-485 may be filed either concurrently with the Form I-140 or
If a Visa Number Was Not Immediately Available at the Time a Form I-140
Visa Petition Was Filed, and Then a Visa Number Becomes Available, Can
the Alien File Form I-485?
Yes, upon issuance of this rule, if a visa number becomes
immediately available since filing of the underlying Form I-140, the
alien may tehn file
Form I-485, together with associated forms and appropriate fees, with
the Service office at which the visa petition was filed. When filing
Form I-485, the alien will be required to attach a copy of the Form I-
797, Notice of Action, establishing previous receipt and acceptance by
the Service of the underlying Form I-140 visa petition.
If the Alien Is in Deportation or Removal Proceedings, Does the Alien
File the Form I-485 Under This Section With the Service or With the
Immigration Court or Board of Immigration Appeals (Board)?
For aliens in deportation or removal proceedings, 8 CFR 245.2(a)(2)
establishes “applications shall be made and considered only in those
proceedings.” If the alien is before the Immigration Court, the Form
I-485, associated documents and proof of payment of the fees must be
filed with the Immigration Court. If the alien has an appeal pending
before the Board, the Form I-485, associated documents and proof of
payment of the fees must be filed with the Board. The fees must first
be paid to, and receipt obtained from, the Service.
If the Alien Files the Form I-485 and Associated Documents With the
Immigration Court or the Board After Paying the Proper Fees to the
Service, Does Such a Filing Stop or Stay Deportation or Removal
No. The filing of an adjustment action where the underlying visa
petition is not current does not by itself stop or stay (suspend) the
proceedings. The Board will only accept the filing of the Form I-485
for placement into the Record of Proceedings (ROP). This filing is not
a motion to reopen, motion to reconsider, or any other motion beyond a
request to include the adjustment application in the file. Furthermore,
accepting the application and placing it in the ROP is not a reopening
or reconsidering of the case, nor any other action pertaining to the
case. If the underlying petition for the alien is approved and a visa
is or becomes immediately available, the alien must affirmatively move
the Immigration Court or the Board of Immigration Appeals to consider
the application for adjudication, or remand the application to the
Service for adjudication if the Service concurs in the remand.
Besides Eliminating the Delay for Filing Form I-485, How Else Will
These Regulatory Amendments Benefit Aliens?
These amendments will allow the Service to issue Employment
Authorization Documentation (EAD) and advance parole authorization
(which allows the alien to travel outside of the United States
temporarily while his or her Form I-485 is pending with the Service) to
certain alien workers within substantially less time than at present.
In being able to apply for employment authorization and advance parole,
the alien may avoid the adverse consequences of accrual of unlawful
presence. To achieve the desired efficiency improvement in the
Service’s processing, only aliens who have filed a Form I-140 for which
a visa number is immediately available and Form I-485 will qualify for
these benefits. Therefore, as a result of this interim rule, an
eligible beneficiary of a Form I-140 visa petition for whom a visa is
immediately available will no longer need to wait for approval of the
underlying Form I-140 before eligible to apply for these benefits.
How Does This Interim Rule Affect the September 6, 2000, Interim Rule
Relating to National Interest Job Offer Waivers for Physicians?
On September 6, 2000, the Service published in the Federal Register
at 64 FR 53889 an interim rule relating to national interest job offer
waivers for physicians. Under 8 CFR 245.18(f) of that interim rule,
when a physician files for adjustment of status the Service is required
to give a physician notice of specific requirements relating to the
adjustment of the physician’s status. This interim rule concerning
concurrent filing of Forms I-140 and I-485 requires one conforming
amendment to 8 CFR 245.18(f). If the physician filed the Form I-485
concurrently with the Form I-140, the Service will give the required
notice upon approval of the Form I-140, rather than upon receipt of the
Form I-485. If the physician waits to subsequently file the Form I-485
while the previously filed Form I-140 is still pending, then the
Service will give the required notice upon approval of the Form I-140.
If the physician files the Form I-485 after the Form I-140 is approved,
then the Service will give the required notice upon receipt of the Form
Good Cause Exception
The Service’s implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based upon the
“good cause” exception found at 5 U.S.C. 553(b)(B) and (d)(1). This
rule relieves the current restriction that bars the filing of an
application for permanent residence (Form I-485) until after the
underlying visa petition (Form I-140) has been approved. This rule is
intended to provide efficiency and fairness to applicants. It is
therefore impractical, unnecessary, and contrary to the public interest
to publish this rule with the prior notice and comment period normally
required under 5 U.S.C. 553(b).
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with 5 U.S.C. 605(b), has reviewed this interim rule and, by
approving it, certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This rule is
intended to expedite alien worker authorization while the alien’s
permanent status application (Form I-485) is pending. This rule affects
individual aliens, not small entities as that term is defined in 5
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one-year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be “significant regulatory
action” under Executive Order 12866, section 3(f), Regulatory Planning
and Review, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirement (Form I-140) contained in
this rule has been approved for use by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. The OMB control number
for this information collection is contain in 8 CFR 299.5, Display of
List of Subjects
8 CFR Part 204
Administrative practice and Procedures, Immigration, Reporting and
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 204–IMMIGRANT PETITIONS
1. The authority citation for part 204 continues to read as
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part 2.
2. Section 204.5 is amended by revising paragraph (n)(1) to read as
Sec. 204.5 Petitions for employment-based immigrants.
* * * * *
(n) * * *
(1) Approval. An approved employment-based petition will be
forwarded to the National Visa Center of the Department of State if the
beneficiary resides outside of the United States. If the Form I-140
petition indicates that the alien has filed or will file an application
for adjustment to permanent residence in the United States (Form I-485)
the approved visa petition (Form I-140), will be retained by the
Service for consideration with the application for permanent residence
(Form I-485). If a visa is available, and Form I-485 has not been
filed, the alien will be instructed on the Form I-797, Notice of
Action, (mailed out upon approval of the Form I-140 petition) to file
the Form I-485.
PART 245–ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
3. The authority citation for part 245 continues to read as
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902. Pub. L. 105-277, 112 Stat.
2681; 8 CFR part 2.
4. Section 245.1 is amended by revising the third sentence in
paragraph (g)(1) to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(g) * * *
(1) * * * An immigrant visa is considered available for accepting
and processing the application Form I-485 is the preference category
applicant has a priority date on the waiting list which is earlier than
the date shown in the Bulletin (or the Bulletin shows that numbers for
visa applicants in his or her category are current). * * *
* * * * *
5. Section 245.2 is amended by revising paragraph (a)(2)(i), to
read as follows:
Sec. 245. Application.
(a) * * *
(2) * * *
(i) Under section 245. (A) An immigrant visa must be immediately
available in order for an alien to properly file an adjustment
application under section 245 of the Act See Sec. 245.1(g)(1) to
determine whether an immigrant visa is immediately available.
(B) If, at the time of filing, approval of a visa petition filed
for classification under section 201(b)(2)(A)(i), section 203(a) or
section 203(b)(1), (2) or (3) of the Act would make a visa immediately
available to the alien beneficiary, the alien beneficiary’s adjustment
application will be considered properly filed whether submitted
concurrently with or subsequent to the visa petition, provided that it
meets the filing requirements contained in parts 103 and 245. For any
other classification, the alien beneficiary may file the adjustment
application only after the Service has approved the visa petition.
(C) A visa petition and an adjustment application are concurrently
filed only if:
(1) The visa petitioner and adjustment applicant each file their
respective form at the same time, bundled together within a single
mailer or delivery packet, with the proper filing fees on the same day
and at the same Service office, or;
(2) the visa petitioner filed the visa petition, for which a visa
number has become immediately available, on, before or after July 31,
2002, and the adjustment applicant files the adjustment application,
together with the proper filing fee and a copy of the Form I-797,
Notice of Action, establishing the receipt and acceptance by the
Service of the underlying Form I-140 visa petition, at the same Service
office at which the visa petitioner filed the visa petition, or;
(3) The visa petitioner filed the visa petition, for which a visa
number has become immediately available, on, before, or after July 31,
2002, and the adjustment applicant files the adjustment application,
together with proof of payment of the filing fee with the Service and a
copy of the Form I-797 Notice of Action establishing the receipt and
acceptance by the Service of the underlying Form I-140 visa petition,
with the Immigration Court or the Board of Immigration Appeals when
jurisdiction lies under paragraph (a)(1) of this section.
* * * * *
6. Section 245.18 is amended by revising paragraph (f) introductory
text to read as follows:
Sec. 245.18 How can physicians (with approved Forms I-140) that are
serving in medically underserved areas or at a Veterans Affairs
facility adjust status?
* * * * *
(f) Will the Service provide information to the physician about
evidence and supplemental filings? The Service shall provide the
physician with the information and the projected timetables for
completing the adjustment process, as described in this paragraph. If
the physician either files the Form I-485 concurrently with or waits to
subsequently file the Form I-485 while the previously filed Form I-140
is still pending, then the Service will given this information upon
approval of the Form I-140. If the physician does not file the
adjustment application until after approval of the Form I-140 visa
petition, the Service shall provide this information upon receipt of
the Form I-485 adjustment application.
* * * * *
PART 299–IMMIGRATION FORMS
7. The authority citation for part 299 continues to read as
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
8. Section 299.1 is amended in the table by revising the entry for
Form I-140, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
Form No. date Title
* * * * *
I-140………………….. 08-30-01 Immigrant Petition for Alien
* * * * *
Dated: July 5, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-19249 Filed 7-30-02; 8:45 am]
BILLING CODE 4410-10-M
Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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