INS Authorizes Concurrent Filing of Green Card Applications and Immigrant Petitions

August 2, 2002 - On July 31st, the Immigration and Naturalization Service ("INS") issued a rule that allows employees to file a green card application (Form I-485 Application for Adjustment of Status) concurrently with their employer's Immigrant Petition for Alien Worker (Form I-140) when a visa is immediately available. The new concurrent filing procedure eliminates the delay that takes place between approval of employer's I-140 petition and the subsequent filing of the employee's I-485 application. This is an important benefit, especially for workers and their dependents who are in the U.S. in time-limited nonimmigrant visa categories such as H-1B (limited to a total of six years), L-1A (limited to a total of seven years), and L-1B (limited to a total of five years). These workers may stay in the U.S. and continue working with an employment authorization document, and, if eligible, travel abroad.

Employees and their eligible dependents who file the I-485 green card applications concurrently with their employer's I-140 petition may apply for work authorization benefits at the same time. Applicants for adjustment of status are entitled to interim work authorization during the period of time that INS processes their green card applications. INS processing times for Form I-485s are quite lengthy, often exceeding one year. The employment authorization documents are valid for one year. Employees and their dependents therefore may need to renew employment authorization during the time that their I-1485 green card applications are pending at INS.

Eligible employees and dependents may also apply for a travel document known as advance parole. The advance parole travel document authorizes travel abroad while the application for adjustment of status is pending with INS.

INS accepts green card applications only when a visa is immediately available. The Department of State controls immigrant visa allocations across various employment-based categories through complex formulae pursuant to the Immigration and Naturalization Act, which generally limits the total number of immigrant visas to 140,000 each fiscal year. At this time, immigrant visas are available in every category, and therefore employees should consider filing applications for adjustment of status.

At this time, it is not clear how the new rule will affect INS processing procedures for employment-based cases. Likewise, it is not clear how the new rule will interface with the portability provisions of the American Competitiveness in the 21st Century Act ("AC21), that was signed into law on October 17, 2000. AC21 allows employment-based green card applicants who have been working for a petitioning employer to change employers after the green card application has been pending for more than 180 days provided the employee moves to a same or similar occupation. Depending on the manner in which INS implements the concurrent filing procedure it is possible that that the green card application could be pending at INS for 180 days prior to adjudication of the first employer's underlying I-140 Immigrant Petition. We will also monitor implementation of the new rule to see if the expected onslaught of green card applications will result in a backlog of immigrant visa availability.

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