FAQ » Concurrent Filing of the I-140 petition and the I-485 application

What is "concurrent filing?"



A: Beginning July 31, 2002, you have the option of filing your I-140 immigrant petition (hereinafter "I-140") and I-485 adjustment of status application (hereinafter "AOS application") at the same time. Previously, an applicant for permanent residence was required to wait for the I-140 to be approved before submitting the AOS application.

Will concurrent filing shorten overall processing time?



A: Yes. The main goal in allowing concurrent filing is to shorten the overall processing time. However, CIS (Citizenship and Immigration Services) processing times for both the I-140 and AOS applications has been very inconsistent and thus, it is undeterminable at this time how much time you can save by opting for concurrent filing.

Besides shortening overall processing time, are there any other benefits?



A: Yes. If you have dependents, they may also file their I-485 applications at the same time as you (the principal applicant). This allows you and your dependents to file for EAD (Employment Authorization Document) and AP (Advance Parole travel document) without having to wait for your I-140 to be approved first. Bear in mind, however, that the fact you have an EAD, which gives you authorization to work for other employers, does not change the requirement that, at the time you file the I-140, you must have the intent to be employed by the I-140 petitioner after you attain permanent residency.

Are there any disadvantages to concurrent filing?



A: Possibly. If your I-140 is denied, the AOS application will naturally be denied as well. Thus, the concern is a financial one. The main causes leading to a denial of I-140 petitions is lack of qualifications on the part of the beneficiary (mainly an issue for EB1 preference petitions) and lack of proof that the sponsoring employer has the financial ability to continue to pay the offered salary to the beneficiary (mainly an issue for smaller, younger, and/or unprofitable companies).

Is concurrent filing available if I file a First Preference (EB-1) I-140 petition?



A: Yes. Concurrent filing is available for the first three preference categories (i.e., EB-1, EB-2, and EB-3). However, CIS heavily scrutinized all first preference I-140s and thus, the approval rate of EB-1 petitions is lower than that of petitions in the EB-2 and EB-3 categories, and if your EB-1 I-140 petition is denied, the concurrently filed AOS application will also be denied.

I am currently on a H-1B visa, which expires in five (5) months. If I file the I-140 and I-485 petitions concurrently and obtain an EAD, do I need an H-1B visa extension?



A: Although it is not necessary for you to maintain H-1B status once your I-485 is filed and an EAD is issued, it is advisable to maintain your nonimmigrant status while your I-140 and I-485 is pending in the event the I-140 is denied, since the I-485 cannot stand without an approved I-140.

How does concurrent filing affect the AC21 180-day rule for AOS portability?



A: Pursuant to changes in immigration law brought by the American Competitiveness in the Twenty-First Century Act (AC21), an AOS application that has been pending for 180 days or more remains valid even if the applicant changes jobs or employers as long as the new job is in “the same or a similar occupational classification” as the job for which the I-140 was filed. Although CIS has not issued regulations detailing how this law will be applied, there is nothing to indicate that the 180-day law will be applied differently for concurrently filed cases. 

However, if you change employer after the AOS application has been pending for 180-days, but before the I-140 has been adjudicated, and CIS ends up denying the I-140, the AOS application will be denied as well.

What will happen if I leave my I-140 employer after my I-140 and AOS application has been filed and then my employer withdraws the I-140 petition?



A: If the I-140 has already been approved and then the employer withdraws the approved I-140 after the AOS application has been pending for 180 days, the approved I-140 remains valid with respect to your new offer of employment in accordance with AC21. You will have to submit evidence to demonstrate that the new offer of employment is in the same or similar occupational classification as the offer of employment for which the I-140 was filed. 

If the approval of I-140 is revoked or the pending I-140 is withdrawn before the AOS application has been pending 180 days, the approved I-140 is no longer valid with respect to a new offer of employment and the AOS application may be denied.