Concurrent Filing of Immigrant Visa Petition and Form I-485 for Adjustment of Status

 

Introduction: Concurrent Filing of Immigrant Visa Petition and Adjustment of Status Application

adjustment of status application i-485An alien may only file a Form I-485, Application to Register Permanent Residence or Adjust Status when an immigrant visa number in his or her preference category is available. Therefore, in many family-based and employment-based adjustment of status cases, the immigrant visa petition must be filed before an adjustment of status application can be filed. Furthermore, after the immigrant visa petition is approved, the adjustment of status applicant must still wait until an immigrant visa number is available before filing for adjustment. However, in cases where an immigrant visa number in the adjustment of status applicant's category is immediately available, United States Citizenship and Immigration Services (USCIS) allows “concurrent filing.” This means that the Form I-485 and the immigrant visa petition may be filed together.

It is important to note that concurrent filing is only available for person seeking to adjust status while in the United States. Concurrent filing cannot occur in consular processed cases because in those situations, the immigrant visa application is filed with the Department of State (DOS), and DOS requires an approved immigrant visa petition from USCIS to approve an immigrant visa.

In this article, we will go over all of the situations in which concurrent filing is available to adjustment of status applicants and the concurrent filing rules.

Concurrent Filing Regulations

The regulations regarding the filing of adjustment of status applications under section 245 of the Immigration and Nationality Act (INA) are found in 8 C.F.R. 245.2.

8 C.F.R. 245.2(i)(A) allows for the concurrent filing of an immigrant visa petition and adjustment of status application when an immigrant visa is immediately available.

Who can File Concurrently?

8 C.F.R. 245.2(i)(B) permits concurrent filing for immigrant visa petitions filed under classification for:

  • INA 201(b)(2)(A)(i) — Immediate Relatives of U.S. Citizens (always)
  • INA 203(a) — Beneficiaries of family-based petitions in the first, second, third, and fourth preference categories when an immigrant visa is immediately available
  • INA 203(b)(1), (2), or (3) — Beneficiaries of employment-based petitions in the first, second, and third preference categories when an immigrant visa is immediately available

Beneficiaries of an immediate relative petition filed by a U.S. citizen are always able for the concurrent filing of the Form I-130 with the Form I-485.

Beneficiaries of family-based petitions in one of the four preference categories may file the Form I-130 concurrently with the Form I-485 if an immigrant visa is immediately available. If an immigrant visa is not immediately available, then the Form I-130 must be filed and approved before the Form I-485. In general, concurrent filing will not be available for non-immediate relative family-based petitions.

Beneficiaries of employment-based petitions and eligible derivative family members in one of the first three preference categories may file the Form I-140 concurrently with the Form I-485 if an immigrant visa is immediately available in the applicable preference category. If an immigrant visa is not immediately available, then the Form I-140 must be filed and approved before the Form I-485.

Concurrent filing is not available for employment-based petitions in the fourth and fifth preference categories even if an immigrant visa would be immediately available in the applicable preference category.

Violence Against Women Act (VAWA) self-petitioning battered spouses and children under section 204(a) of the INA may file the Form I-360 concurrently with the Form I-485 to adjust status if the abusive spouse or parent is a U.S. citizen. Eligible non-immediate relatives may file the Form I-360 concurrently with the Form I-485 only if an immigrant visa number is immediately available.

Special immigrant juveniles under section 101(a)(27)(J) of the INA may file the Form I-360 concurrently with the Form I-485 if an immigrant visa number in the fourth preference category is immediately available and if USCIS has jurisdiction over the adjustment of status application. USCIS encourages concurrent filing in these cases [see memo].1 The immigrant visa process for special immigrant juveniles is found in 8 C.F.R. 204.11.

Retired G-4 officers and eligible derivatives seeking immigrant visas under INA 101(a)(27)(I) and adjustment of status under 8 C.F.R. 101.5 are eligible to file the Form I-360 concurrently with the Form I-485 to adjust status [see memo].2

Certain armed forces members seeking immigrant visas under section 101(a)(27)(K) of the INA and adjustment of status under 8 C.F.R. 245.8 are eligible for concurrent filing of the Form I-360 along with the Form I-485 for adjustment of status.

AFM 21.11(d)(1) explains that the spouse, parent, or child of a U.S. citizen who served honorably in an active duty status in the United States armed services and died as a result of injuries or diseases incurred in or aggravated by combat is eligible for concurrent filing of the Form I-360 and the Form I-485.3 Such a petition must be filed within two years of the death of the U.S. citizen.

Concurrent Filing Rules

The concurrent filing process is described in 8 C.F.R. 245.2(a)(2)(C). The regulation states that an immigrant visa petition and adjustment application are concurrently filed only if (paraphrasing):

  1. The petitioner and adjustment applicant file their respective forms at the same time, bundled together in a single mailer or delivery packet, with the proper filing fees on the same say at the same Service office, or;
  2. The petitioner filed the immigrant 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 filing fee and a copy of the Form I-797, Notice of Action, establishing that the same service office received the Form I-140 petition, or;
  3. The petitioner filed the immigrant 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 filing fee and a copy of the Form I-797, Notice of Action establishing the receipt and acceptance by USCIS of the underlying Form I-140 petition with the Immigration Court or the Board of Immigration Appeals (BIA) when jurisdiction lies under USCIS.

In general, in order to file concurrently, the petitioner and adjustment of status applicant must file their respective forms bundled together with fee on the same day at the same (and appropriate) USCIS service office.

Employment-based applicants may also have the immigrant visa petition and adjustment of status application filed concurrently if an immigrant visa number becomes available while the immigrant visa petition is pending. In this case, the adjustment of status applicant must file the Form I-485 with the same USCIS service office that the Form I-140 was filed with along with a receipt demonstrating that the service office received the Form I-140.

Concurrent Filing Process

When USCIS accepts a concurrently filed immigrant visa petition along with an adjustment of status application, it will first determine whether the immigrant visa petition is approvable before considering the adjustment of status application. If the underlying immigrant visa petition is denied, the adjustment of status application will be automatically denied. The fees for the adjustment of status application are non-refundable even if the immigrant visa petition is denied.

Concurrent Filing and I-140 Portability

An interesting question arises with regard to the concurrent filing of an I-140 petition and an I-485 application and I-140 portability under section 204(j) of the INA. Under certain circumstances, the beneficiary of an approved I-140 petition with an adjustment of status application pending for at least 180 days may port his or her I-140 petition to a new employer. However, this begs the question in concurrent filing cases where both the I-140 petition and the I-485 application have been pending for at least 180 days.

USCIS's current policy is that if an applicant seeks to exercise I-140 portability when both the I-140 petition and I-485 application have been pending for at least 180 days, USCIS will determine whether the I-140 petition is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is found to be approvable but for issues involving the ability to pay or any issues that arose after the filing of the petition, USCIS will approve the I-140 petition and then determine whether the new job is in the same or similar occupational classification for the applicant to port his or her I-140 petition to it [see memo].4 If the petition is found to not be approvable, portability will not be permitted. Under the Administrative Appeals Office's (AAO's) precedent decision in the Matter of Al Wazzan, 25 I&N Dec. 359 (AAO 2010) [PDF version], portability may not be exercised if the I-140 petition is denied more than 180 days after the filing of the Form I-485 because “an unadjudicated immigrant visa petition is not made 'valid' merely through … the passage of 180 days.”

Please read our article about I-140 portability to learn more [link].

Conclusion: Concurrent Filing of Immigrant Visa Petition and Adjustment of Status Application

When applying for adjustment of status, an applicant as well as the petitioner should consult with an experienced immigration attorney. Among other things, an immigration attorney will be able to determine whether concurrent filing is available for the specific petition. If concurrent filing is available, the immigration attorney will help the adjustment of status applicant determine whether concurrent filing is advisable given the full situation of the petition beneficiary and the viability of the underlying immigrant visa petition. It is important to remember that while concurrent filing may help expedite the adjustment of status process, it in no way changes the evidentiary requirements for either the underlying immigrant visa petition or the adjustment of status application.

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  1. Memo, Yates, Assoc. Dir. Operations, USCIS, HQ/AND 70/23 (May 27, 2004)
  2. Memo Yates, Assoc Dir. Operations, USCIS, Concurrent Filing for Section 101(a)(27)(I) Special Immigrants (Jan 23, 2004)
  3. Eligible for adjustment of status under PL 108-136 § 1703
  4. Memo, Yates, Assoc. Dir. Operations, USCIS, HQPRD 70/6.2.8-P (Dec. 27, 2005)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1070, 1127, 1141, 1207, 1209, 1238 Print. Treatises & Primers.

USCIS, Concurrent Filing, USCIS, (Oct. 29, 2015), available at http://www.uscis.gov/green-card/green-card-processes-and-procedures/concurrent-filing (link)