Concurrent Immigration Filings

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]
RIN 1115-AGOO

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 insregs@usdoj.gov. 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

(202) 353-8177.

 

SUPPLEMENTARY INFORMATION:

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

anytime thereafter.

 

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

 

[[Page 49562]]

 

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

Proceedings?

 

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

I-485.

 

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

U.S.C. 601(6).

 

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

on the

 

[[Page 49563]]

 

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

control numbers.

 

List of Subjects

 

8 CFR Part 204

 

Administrative practice and Procedures, Immigration, Reporting and

recordkeeping requirements.

 

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

follows:

 

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

follows:

 

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

PERMANENT RESIDENCE

 

3. The authority citation for part 245 continues to read as

follows:

 

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.

* * * * *

 

[[Page 49564]]

 

PART 299–IMMIGRATION FORMS

 

7. The authority citation for part 299 continues to read as

follows:

 

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.

 

* * * * *

 

————————————————————————

Edition

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]

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