During the long, slow process of applying for a green card (U.S. lawful permanent residence), finding situations where you can submit applications all at one time, instead of waiting for one to be approved before moving on with the next one, can be a great time-saver. For instance, it's possible for foreign nationals in some circumstances to file an immigrant worker petition (USCIS Form I-140) at the same time that they file a green card application (Form I-485).
Filing these two applications together is referred to as "concurrent filing." In this article, we outline the eligibility requirements of filing concurrently, the benefits of filing concurrently, and the procedures to follow 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 is not required, but it can help deal with issues concerning work authorization and travel authorization.
Whether USCIS will allow you to file these two immigration applications at the same time depends on two things: what visa category you're applying in, and whether you have a current priority date.
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 number of foreign workers who are able to file the I-140 petition without an offer of employment or completing the PERM process. These include foreign nationals who file as individuals of extraordinary ability and those seeking a national interest waiver.
For workers 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), but NOT the date the DOL approved your PERM. For example, if you submitted your PERM on October 1, 2020, and the DOL approved it on January 1, 2021, your priority date is October 1, 2020.
Now that you know your priority date, you might be asking, what does it mean for a priority date to be “current,” and how can you find out whether yours is?
Congress allots a specified number of immigrant visas (or green cards) to each of the immigration categories according to a person’s country of birth. 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 applicants will have to wait to receive their immigrant visas.
This concept is easier to understand by looking at the actual Department of State Visa Bulletin. Every month, it lists priority dates that have become current in each visa category. The Bulletin also breaks down priority dates by countries in certain categories, when a backlog develops due to per-country limits on visas and high demand from those countries.
For example, if you look at the January 2021 Visa Bulletin, you'll see that only some priority dates are "current," or marked with the letter “C.” This means that foreign nationals in that category are eligible to file their I-140 and I-485 petitions concurrently.
Conversely, let's say you are an Indian national filing an I-140 in the Employment-Based 2nd Preference category. Per the Bulletin, the priority date for that category as of January 2021 is October 8, 2009. If your priority date is that date or later, your date is NOT current, and you may not file concurrently. But if your priority date is any date prior to October 8, 2009, your priority date is current and you are eligible for concurrent filing.
There's one twist to the Visa Bulletin. It has two charts: “Final Action Dates for Employment-Based Preference Cases” and “Dates for Filing of Employment-Based Visa Applications.”
The State Department started providing the second chart in 2015, as a way to allow earlier submissions of I-485 applications. USCIS, however, decided it would choose which chart applies each month. Therefore, a few days after the State Department posts its monthly Visa Bulletin, USCIS announces which chart you need to follow. Ever since this bifurcated system launched, the trend has been for USCIS to follow the Dates for Filing chart for family cases and Final Action chart for employment cases.
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 later, once your priority date becomes current; as opposed to waiting until you can file both applications concurrently.
When filing an 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 nonimmigrant visa petition on your behalf. Additionally, once USCIS issues your AP, you can travel outside the U.S. and reenter 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 a period of authorized stay.” So even if you let your nonimmigrant status expire, you are still authorized to remain 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, 2021. Your priority date is current, so you file the I-140 and I-485 applications concurrently on February 1, 2021. You do not extend your H-1B status. After March 1, 2021, you will still be considered “in a period of authorized stay” notwithstanding the H-1B expiration, and if you applied for an 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).
To file concurrently you must normally 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 portion of the application requires a signed Form I-485; 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. Because of the sometimes lengthy processing times and the two-year validity period for the medical exam report, many applicants choose to submit the medical exam later, such as when responding to a Request for Evidence or appearing for an interview at the local USCIS office.
If you have dependents (spouse and children) who are filing for green cards too, each must complete an entire I-485 application, 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 must order a certified copy of it from the government of your home country, which process will likely take two months. You might file the I-140 on May 1, 2021, and when you receive the certificate on July 1, 2021, file the I-485 application; again, as long as your priority date is still current.
Once a priority date becomes current, it typically remains current. However, it is possible that your priority date might become current one month, and then in future months no longer be current. This is called "retrogression." It can happen if USCIS receives an enormous amount of green card applications that use up all of the available green cards in that category.
Let’s use a fictitious example for illustration. Let's say that your priority date is June 1, 2009 and your category is Employment-Based 2nd Preference, and you are an Indian national. According to the January 2021 Visa Bulletin, your priority date was current, because the priority date in that category was October 8, 2009.
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 May 1, 2009. Your priority date would no longer be current.
If you did not file your green card application in January, while your date was current, you would be ineligible to file your green card application until your priority date becomes current again. If you were able to submit your application, USCIS would not approve it until your priority date once again becomes current. Retrogression is always a possibility (though this example was NOT based upon actual events).