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Should You Concurrently File The I-140 and I-485?

 

What is the I-140?

The I-140 is the immigrant petition that serves as the basis for an employment-based green card (I-485) application. EB-1A Extraordinary Ability and EB-2 National Interest Waiver (NIW) are different categories for the I-140.

What is the I-485?

The I-485 is the actual “green card” application. You cannot file an employment-based I-485 unless you either filed the I-140 first, or you are filing the I-140 and I-485 together. Also, you must wait until your priority date (your place in line) is current before the I-485 can be filed. You must be physically present in the U.S. to file the I-485. 

Along with the I-485 application, you can elect to file the green card-based Employment Authorization Document (EAD) and Advance Parole (AP). The EAD and AP are alternative options for work authorization and travel documentation that you can use while your green card application is pending. EAD provides the cardholder with an unrestricted right to accept employment in the U.S. while the green card application is pending. AP allows you to travel and return to the U.S. without abandoning your pending green card application. 

Should you concurrently file the I-140 and the I-485?

Concurrent filing means filing the I-140 and I-485 together. To determine whether you should concurrently file:

Step 1: See if your priority date is current. The priority date determines if you are eligible to file the I-485. Instructions on how to determine your priority date are available here.

  • If your priority date is current, then you have the option to concurrently file the I-140 with the I-485. Proceed to Step 2.
  • If your priority date is not current, then you do not have the option to concurrently file. You must file the I-140 as a standalone petition, without the I-485. 

Step 2: If your priority date is current, to decide whether to concurrently file, you should then consider whether your I-140 is eligible for premium processing. Premium processing allows you to receive a decision within 15 days of filing. EB-1A petitions are eligible for premium processing, but EB-2 NIW petitions are not eligible. 

You may want to file the EB-1A as a standalone petition with premium processing because you can receive the final decision relatively quickly. Once you know whether the EB-1A is approved, you can then start the I-485 process. This way, you will not waste time, money, and effort on the concurrent I-485 filing if the EB-1A is not successful.

If your I-140 category is not eligible for premium processing, or if you are eligible for premium processing but still wish to consider concurrent filing. Here are the benefits and drawbacks of concurrent filing:

Benefit #1: Concurrent filing may speed up the green card timeline by a few weeks/months. You may want to concurrently file if you wish to obtain the green card as quickly as possible. Under regular processing, the I-140 review timeline is approximately 6-8 months. The I-485 review timeline is approximately an additional year, and there is no premium processing option. Concurrent filing of the I-140 and I-485 may slightly speed up the overall review timeline. 

Benefit #2: Concurrently filing will allow you to get the green card-based EAD/AP sooner. You may want to concurrently file if you need the EAD/AP as a work or travel document. If you file the I-485 with the EAD and AP applications, you will receive your EAD and AP in about 4-6 months after I-485 filing. The EAD/AP will be issued based on the I-485 filing, even if your I-140 is still pending. 

Benefit #3: Concurrently filing will allow dependents to get their green card-based EAD/AP sooner. You may want to concurrently file if your dependent(s) need the EAD/AP as a work or travel document. If you filed your dependent’s I-485 with EAD and AP applications, they will receive their EAD and AP in about 4-6 months after I-485 filing. Their EAD/AP will be issued, even if your I-140 is still pending. 

Drawback #1: Concurrent filing may result in wasted time and money if the I-140 is denied. If your I-140 petition is ultimately denied, USCIS will stop processing the I-485 application, because the denial of the I-140 means that you no longer have a basis for the green card. You will have wasted money, time, and effort on the I-485 application that will not be processed. You may not want to concurrently file if you are not in a rush to get a green card, or if you have a busy schedule and want the security of knowing the I-140 decision before spending time on the I-485 application.  

Drawback #2: Concurrent filing may result in upfront planning for international travel restrictions. Unless you are in H-1B or L-1 status, you need to wait at least 90 days from your last entry into the U.S. before the I-485 can be filed. Once your I-485 is filed, unless you are in H-1B or L-1 status, you must also remain in the U.S. until the AP is issued. 

If you are in O-1 status, concurrent filing means remaining in the U.S. and not traveling internationally for approximately 9 months. This is because international travel and re-entry on O-1 after the I-485 is filed, without the AP, would risk abandonment of your green card application. If you are in O-1, you may not want to concurrently file if you have upcoming international travel.

If your priority date is current, the decision whether to proceed with the I-140 as a standalone petition, concurrently file the I-140 and the I-485 together, or subsequently file I-485 based on a pending I-140 (same benefits and drawbacks as filing I-140 and I-485 together) is very personal, based on your specific needs and risk evaluations. Legalpad is here to help you make an informed decision. Let’s walk through a few scenarios together! 

Example 1: Akash was born in India. He is not married, and he wants to file an EB-2 NIW petition. He does not have a prior I-140 approval. According to the September 2020 Visa Bulletin, Akash would not have the option to concurrently file the I-140 and I-485 because his priority is not current. The EB-2 NIW would need to be prepared as a standalone petition, without the I-485.

Example 2: Marco was born in Italy and he wants to file an EB-1A.  He is currently in O-1 status. According to the  September 2020 Visa Bulletin, Marco’s priority date is current and he has the option file the I-140 together with the I-485. Regardless, Marco may elect to file the EB-1A as a standalone petition with premium processing, to avoid wasting time and effort on the I-485 if the I-140 is not approved. If the EB-1A is approved, he can then file the I-485 application. Note: Once he is ready to file the I-485, Marco needs to wait at least 90 days from his last entry into the U.S. in O-1 before the I-485 can be filed. Marco must also remain in the U.S. from I-485 filing to AP is issuance, which can take 4-6 months.

Example 3: Suzie was born in Canada. She is currently in O-1 status, and her spouse is in O-3 dependent status. Her spouse wants to start working in the U.S. as soon as possible. Suzie wants to file an EB-2 NIW and she is current in the September 2020 Visa Bulletin. The EB-2 NIW is not eligible for premium processing. Because Suzie wants work authorization for her spouse as soon as possible, she may consider concurrently filing the EB-2 NIW with the I-485 for herself and her spouse. This will allow her spouse to receive the green card-based EAD approximately 4-6 months after the I-485s are filed. She understands that, if the EB-2 NIW is ultimately denied, the I-485s will no longer be processed. Note: Suzie and her spouse need to also wait at least 90 days from their last entry into the U.S. in O-1/O-3 before the I-485s can be filed. Once the I-485s are filed, they must remain in the U.S. until the APs are issued.