During the long, slow process of applying for a green card, finding situations where you can submit applications together, instead of waiting for one to be approved before moving on with the next one, can be a great time-saver. For instance, it is possible for foreign nationals in some circumstances to file their immigrant worker petition (USCIS Form I-140) at the same time that they file their green card application (Form I-485).
Filing these two applications together is referred to as "concurrent filing." In this article, we will outline the eligibility requirements of filing concurrently, the benefits of filing concurrently, and the general procedures that should be followed when filing concurrently.
Not only are the long waits for green card approval frustrating to foreign nationals, but they can result in them being unable to work or travel outside of the United States during the wait. Filing concurrently helps deal with issues concerning work authorization and travel authorization.
The majority of foreign workers who file I-140 petitions are those whose employers were required to complete the labor certification (PERM) process. This article focuses on these foreign workers. (We will not discuss here the small minority of foreign workers who are able to file the I-140 petition without an offer of employment or completing the PERM process. These workers include foreign nationals who are filing as individuals of extraordinary ability, or individuals seeking a national interest waiver.)
For workers who are filing I-140 petitions based upon approved PERMs, to be eligible to file concurrently, their priority dates must be current. In the context of PERM-based I-140 petitions, your priority date is the date on which your PERM was submitted to the Department of Labor (DOL) – NOT the date the DOL approved your PERM. For example, if you submitted your PERM on October 1, 2015, and the DOL approved it on January 1, 2016, your priority date is October 1, 2015.
Now that you know your priority date, you are probably asking yourself what does it mean for your priority date to be “current” and how can you find out whether it is current. Congress allots a specified number of immigrant visas (or green cards) to each of the immigration categories. If in a certain category, more foreign nationals qualify for immigrant visas than there are visa numbers available, the category is considered to be “backlogged” and some of those foreign nationals are going to have to wait to receive their immigrant visas.
This concept is easier to understand by looking to the actual visa numbers that are available. To do so, see the Department of State’s Visa Bulletin. The Bulletin contains list of priority dates that have become current in each visa category. A new Visa Bulletin comes out every month. The Bulletin also breaks down priority dates by countries in certain categories, as a number of countries are particularly backlogged due to per-country limits on visas and high demand from those countries.
For example, let’s look at the March 2014 Visa Bulletin, available here:http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2014/visa-bulletin-for-march-2014.html. Per the Bulletin, all priority dates are current for foreign nationals applying for green cards under the Employment-Based 1st Preference category. (When a category is current, the category is marked with the letter “C.”) This means that all foreign nationals in this category, regardless of country of origin, are eligible to file their I-140 and I-485 petitions concurrently.
Conversely, say you are an Indian national and you are filing your I-140 in the Employment-Based 2nd Preference category. Per the Bulletin, the priority date for that category as of March 2015 is Nov 4, 2016. If your priority date is May 1, 2017, your date is NOT current, and you may not file concurrently. But if your priority date is any date prior to Nov 4, 2016, your priority date is current and you are eligible for concurrent filing.
It is important to highlight that there is no requirement to file the I-140 and I-485 applications concurrently. However, as explained below, there are multiple advantages to concurrent filing. But if your priority date is not current, it is usually in your best interest to proceed with the I-140 filing and file your I-485 once your priority date becomes current, as opposed to waiting until you can file both applications concurrently.
When you file the I-485 application, you are also eligible to file for an employment authorization document (EAD) and for travel authorization (referred to as advance parole or AP). You file for the EAD using Form I-765, and for AP using Form I-131.
Once USCIS issues your EAD, you are authorized to work for any employer in the U.S. without the employer having to file an H-1B or other employment-based petition on your behalf. Additionally, once USCIS issues your AP, you can travel outside the U.S. and reenter the U.S. using the AP instead of having to obtain a visa at a U.S. consulate abroad (and without your green card application being cancelled based on your departure).
Another benefit of filing concurrently is that once your I-485 is pending, USCIS considers you to be “in status.” So even if you let your nonimmigrant status expire, you are still considered to be maintaining lawful status in the U.S. and you will not accrue unlawful presence while you wait for USCIS to approve your I-485 application.
For example, let’s say you are in H-1B status. Your H-1B status expires on March 1, 2016. Your priority date is current, so you file the I-140 and I-485 applications concurrently on February 1, 2016. You do not extend your H-1B status. After March 1, 2016, you will still be considered “in status” notwithstanding the H-1B expiration, and if you applied for and EAD and AP, you will be able to continue working for your H-1B employer and be able to travel outside the U.S. even though your H-1B visa expired.
Please note that merely filing the I-485 does NOT automatically give you an EAD or AP. You must file for the required forms either with or after the I-485 (and preferably with, to avoid paying separate fees for them).
In general, to file concurrently you must prepare Forms I-140 and I-485 (and I-131 and I-765 ), together with the required supporting documents and applicable fees, and mail these to USCIS.
The petition requires a signed Form I-140 (and a signed G-28 if an immigration attorney is representing you); the signed original certified Labor Certification (Form ETA 9089); and documents confirming your credentials for the employment position, such as diplomas, degrees, and experience letters.
Your employer must also include documents demonstrating that it has the ability to pay your offered wage, such as tax returns, profit and loss statements, or your pay stubs if you are currently working for that employer.
The green card application requires a signed Form I-485; signed Form G-325A; signed Form G-28 (if an attorney is handling your case); a copy of your birth certificate and marriage certificate (if you are married); passport-style photographs; and a completed medical examination performed by a USCIS-designated Civil Surgeon (a list of which is available on the USCIS website).
If you have dependents (spouse and children) who are filing for their green cards too, each dependent must complete an entire I-485 application as well, including photographs, medical examinations, birth certificates, and so on.
Sometimes it takes applicants a long time to gather all of the documents necessary for the I-485 application. You can file this application either at the same time as your I-140, or any time thereafter, as long as your priority date remains current.
For example, let’s say you lost your birth certificate and you must order a certified copy of the certificate from the government of your home country, and the government states it will take approximately two months to send the certificate. You might file the I-140 on May 1, 2016, and when you receive the certificate on July 1, 2016, file the I-485 Application -- again, as long as your priority date is still current.
Once your priority date becomes current, it typically remains current. However, it is possible (although unlikely) that your priority date may become current one month, and then in future months it will no longer be current. This type of movement is called "retrogression." Retrogression can happen if USCIS receives an enormous amount of green card applications that use up all of the available green cards in that category.
For example, let's say that your priority date is January 1, 2017 and your category is Employment-Based 2nd Preference, and you are an Indian national. According to the March 2016 Visa Bulletin, your priority date is current, because the priority date in that category is November 4, 2017.
Now let's imagine that USCIS receives more green card applications than are available for that category. So in April, the Department of State issues the Visa Bulletin indicating that the priority date for Indian nationals in the Employment-Based 2nd Preference category is December 1, 2016. Your priority date is no longer current. If you did not file your green card application in March, while your date was current, you are ineligible to file your green card application until your priority date becomes current again. Again, it is unlikely that the priority dates will retrogress, but you should be aware that retrogression is a possibility.