Filing Forms I-140 and I-485 Concurrently

If you are a foreign national seeking to further your employment-based endeavors in the United States under the first, second or third preference (EB-1, EB-2 or EB-3) visa subcategories, and are seeking U.S. permanent residency, you should consider filing forms I-140 and I-485 concurrently. This is a great option for you, especially if you have a strong case and wish to expedite your application process altogether.

In this article, we discuss the context of concurrent filing, and how it specifically relates to filing forms I-140 and I-485 simultaneously.

Generally speaking, Form I-140 is filed by sponsoring employers on the applicant’s behalf, in order to establish employment-based visa eligibility. This is completed after the priority date is made current, especially before applicants file Form I-485 (the green card application).

Depending on the United States Citizenship and Immigration Services (USCIS) service center handling the case, concurrently filing takes an average of about six months to be fully processed.

There are many benefits to concurrent filing Form I-140 and Form I-485, which are discussed below.

Concurrent Filing

Initially, the USCIS required that an I-140 was approved before an applicant could file an I-485. However, it was established in July of 2002 that filing them concurrently was acceptable. This means applicants can file their I-485 application together with their I-140, or while it's pending.

It is important to know that only the EB-1, EB-2 and EB-3 visa subcategories are eligible to file Forms I-140 and I-485 at the same time. As an added benefit to concurrent filing, the USCIS may grant employment and/or travel authorizations, when an applicant’s I-140 petition is pending. This allows for quicker job changing and/or traveling out of the country, especially in urgent situations.

Depending on the applicant’s situation, they may prefer to file his or her I-140 and I-485 forms concurrently. If any of following scenarios exist, applicants may want to elect for concurrent filing:

• The probability of an I-140 approval
• The urgency of needing an Employment Authorization Document (EAD)
• The urgency of needing to leave and return to the U.S. (advance parole)
• The sponsoring employer’s financial stability appears to necessitate a job change

Otherwise, it should be known that applicants are not required to file Forms I-140 and I-485 at the same time. It is completely acceptable to wait for a USCIS officer to approve their I-140 before they file their I-485. This is often done when applicants aren’t quite sure of whether their case has a high approval probability.

I-140, Immigrant Petition for Alien Workers

Form I-140 is a petition to grant a foreign worker permanent U.S. residency, which is typically done prior to petitioning for an adjustment of status (Form I-485). The petition is filed by a U.S.-based sponsoring employer, on behalf of the foreign national. 

An I-140 is used to confirm that the employer seeks to hire the foreign national, and that the sponsor was unable to find an otherwise qualified U.S. worker who was available to fill the open position. Furthermore, the form attests that the applicant is qualified to perform the job duties  by way of accompaniment of formal education and professional experience documentation.

It is foreign nationals within any of the following visa subcategories who have eligibility to apply for an I-140:

• EB-1 Visa, Priority workers:
  • Extraordinary ability (E11)
  • Outstanding professors and researchers (E12)
  • Multinational executives or managers (E13)
• EB-2 Visa:
  • Advanced degree (E21)
  • Exceptional ability (E21)
  • National Interest Waiver (NIW)
• EB-3 Visa:
  • Skilled workers (E31)
  • Professionals (E32)
  • Schedule A nurses
  • Unskilled worker (EW3)

Approval doesn’t necessarily permit the applicant legal work authorization, or even admittance to the country, but it is the foundation for obtaining a green card.

The fee associated with filing Form I-140 is $700, and is paid by the applicant’s sponsoring employer, directly to the USCIS.

Depending on the applicant’s visa category, and based on the service center (Nebraska or Texas), the processing times for Form I-140 differ greatly. The most current USCIS Case Processing Times can be checked on their website.

Form I-485, Application to Register Permanent Residence or Adjust Status

Furthermore, Form I-485 is an application to adjust a foreign national’s status in the U.S., or to register themselves as a permanent U.S. resident. It is an application for a green card, and is typically achieved after petitioning for an I-140. 

With regards to priority dates, it is the date the Permanent Labor Certification (PERM) was filed by the employer that becomes the priority date. This can be found on the Notice of Action or Notice of Approval (Form I-797).

Once the applicant’s priority date is current, he or she can then file their I-485 application to adjust their status. To find out whether an employment-based (EB-2 and EB-3) priority date is current, proposed beneficiaries can refer to the USCIS Visa Bulletin website.

It is worth mentioning here that if the priority date is not current, the USCIS will reject the I-485 application for EB-4 and EB-5 visa subcategories.

The fee associated with filing Form I-485 is $1,140, and is paid by the applicant directly to the USCIS.

Depending on the service center, the processing times for Form I-485 range from 11 to 34 months. Therefore it is advised to revert back to the Processing Times website.

Benefits Filing Forms I-140 and I-485 Concurrently

Applicants with a strong case, who are seeking to become a permanent resident of the U.S. through their U.S. employment, oftentimes prefer to file their I-140 and I-485 at the same time. 

This provides the ability for the applicant to:

• File Form I-485 sooner — while Form I-140 is pending, which may expedite the green card application process by three or four months
• Receive employment authorization as well as travel authorization sooner
• The applicant’s dependents could receive employment and travel authorizations sooner
• Resign from his or her job and port to a new one more quickly
• The ability to stop the accrual of unlawful presence in the U.S. — for individuals who’ve overstayed their visa validity period (fallen out of status)

Who Can File I-140 and I-485 Concurrently

The following individuals are eligible for filing I-140 and I-485 simultaneously:

• Employment-based applicants within the EB-1, EB-2 and EB-3 subcategories (upon visa number availability)
• The eligible immediate relatives of an EB applicant (upon visa number availability)
• The eligible family members of U.S. citizens who are currently living in the U.S.
• Any Special Immigrant Juvenile (SIJ), provided the USCIS has jurisdiction over the I-485 application (upon EB-4 visa number availability)
• Battered spouses or children (dependents) who are self-petitioning, provided either of the following exists:
  • The abusive spouse or parent is a U.S. citizen
  • Upon visa number availability
• Employees or family members of a Special Immigrant International Organization(s)
• Armed forces applicants seeking a special immigrant visa under Section101(a)(27)(K) of the Immigration and Nationality Act (INA)

How to File Form I-140

There are two options to file an I-140, e-filing online, or by mailing the petition directly to the appropriate service center.

When e-filing Form I-140, the petition itself will be forwarded to the appropriate service center for processing. Applicants will receive a filing receipt confirmation along with the service center location for future reference. It is the responsibility of the applicant to send any subsequent communications and supporting documents to the specified service center.

Otherwise, applicants (or sponsoring employers) will need to mail the I-140 petition, along with their documentary evidence, to the service center in California, Nebraska, Texas, or Vermont. For both regular and premium processing, the service centers’ full addresses can be found on the USCIS Direct Filing Addresses website.

It’s worth noting, applicants who were required to obtain a labor certification will need to have the certification filed along with the I-140 petition. This also must be done during the 180-day validity period, which is listed on the labor certification provided by the U.S. Department of Labor (DOL).

Premium Processing

As with many other petitions, the I-140 is eligible for premium processing. This reduces the timeframe down to 15 days for EB-1A applicants, and down to 45 days for EB-2 NIW applicants. 

Applicants filing form I-140 with premium processing are generally advised to file their I-140 by itself, as USCIS determinations are made in such a short amount of time. Furthermore, the I-485 application should be filed soon after the I-140 approval.

Conversely, the I-485 is ineligible for premium processing.

Form I-485 Priority Date

To reiterate, the priority date is either when a sponsoring employer filed PERM with the DOL or when the I-140 immigrant petition was filed with USCIS. Therefore, filing an I-485 application can be done at any time during the month the priority date is listed as current. 

Forms I-140 and I-485 will not necessarily be adjudicated simultaneously. Some situations may arise where an I-140 could be approved and the I-485 could remain pending until a visa number is made available.

When determining whether to file Forms I-140 and I-485 at the same time, applicants should first ascertain whether their priority date is current. If it is, they may proceed with a concurrent filing. If it isn’t, they (or their sponsor) must solely file Form I-140.

How to File Form I-485

An I-485 must be filed by mail, to the same service center where the I-140 and evidentiary documents were mailed. Again, the service centers’ (in California, Nebraska, Texas, and Vermont) full addresses can be found on the USCIS Direct Filing Addresses website.

Next Steps After Filing Form I-485

Within a couple of months, applicants will receive a receipt notice from the USCIS service center, confirming their receipt of the I-485 application. This is accompanied by a notice for the required biometrics services appointment. For security, the appointment will be at a local Application Support Center (ASC) where copies will be made of the foreign national’s fingerprints, photograph and signature. The fee for the biometrics services is $85.

It is crucial this appointment is scheduled and attended as quickly as possible, as missing the appointment will cause delays in I-485 processing.

Processing Times for I-140 and I-485 Concurrent Filing

Overall, the processing times for concurrently filed I-140 and I-485 forms depend on the workload at the service center, though it is averaging about six months. That is, of course, if premium processing of the I-140 was’t previously requested by the petitioner.

Consular Processing for Concurrent Filing

Cases processed by consular processing are ineligible for concurrent filing. This is because concurrent filing is designed for lawful immigrants adjusting their visa status while in the U.S. to permanent residency — a green card.

Furthermore, it is because U.S. visa applications for foreign nationals are filed with the U.S. Department of State (DOS), while immigrant petitions are filed with USCIS.

Frequently Asked Questions (FAQs) About Filing Form I-140 and I-485 Concurrently

Conclusion of Filing Form I-140 and I-485 Concurrently

While Form I-140 is a petition for employment-based visa eligibility, and Form I-485 is an application to adjust an immigrant visa status to that of permanent U.S. residency (a green card), the I-140 must be approved before an I-485 will be adjudicated. However, the USCIS allows applicants to file both forms at the same time (concurrent filing) so as to expedite the entire application process.

Processing times of either form differ, and also depend on the USCIS service center handling the case. However, filing concurrently reduces these times down to an average of six months.

Generally, it is only the first, second and third preference (EB-1, EB-2 and EB-3) visa subcategories that are eligible for concurrent filing.

Fees for the appropriate form filings total $1,925, which comprise of the following:

• Form I-140: $700, paid by the sponsoring employer (when applicable)
• Form I-485: $1,140, paid by the foreign applicant
• Biometrics services: $85, paid by the foreign applicant

If you are seeking an employment-based visa in the United States, followed by permanent U.S. residency, in order to continue your employment-based endeavors, concurrent filing is a highly beneficial option for you.

Furthermore, if you have eligible family members, such as a spouse or child(ren), seeking to accompany you to the U.S. and become permanent residents as well, they will need their own green card applications to be filed. As with you (the beneficiary), dependents are also permitted to apply for work and travel authorizations while their application is pending.