Concurrent Filing of I-140 and I-485
Concurrent filing is the process of filing an immigrant petition at the same time as Form I-485, Application to Register Permanent Residence or Adjust Status, where an immigrant visa number is currently available.
For example, concurrent filing is available to the following:
• Immediate relatives of U.S. citizens currently living in the U.S. (i.e. filing of Form I-130, Petition for Alien Relative, with Form I-485)
• Certain employment-based applicants (EB-1, EB-2, and EB-3) where a visa number is immediately available (i.e. filing of Form I-140, Petition for Alien Worker, with Form I-485)
Certain benefits derived from concurrent filing include the ability to obtain permission to work in the U.S. and travel abroad while the I-485 application is pending as an individual and the accompanying family members can also concurrently file Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, respectively. Filing of an I-485 application earlier through concurrent filing also starts the “180 days portability” clock under the AC-21 portability provisions whereby an individual can port to a new employer within a “same or similar occupation” if his or her I-485 application has been pending for 180 days.
However, there may also be disadvantages to concurrent filing. While the immigrant petition and Form I-485 are filed concurrently, the USCIS will first adjudicate the merits of the immigrant petition. If the immigrant petition is ultimately denied, the individual will no longer have a basis for the approval of the concurrently filed I-485. The I-485 will be subsequently denied and the filing fees associated with the application will not be refunded. Therefore, for certain employment based immigrant petitions where the strength of the case is questionable, it may be advisable to file the I-140, Petition for Alien Worker, first and await approval before applying for I-485 adjustment of status.