Sheela Murthy
New Procedures for Concurrently Filed I-140/I-485 Cases
Posted Apr 23, 2004
There has been a significant change in the way that the USCIS Service Centers will process concurrently filed I-140/I-485 cases. In a March 31, 2004 memorandum (Ohata Memo), Fujie Ohata, Director of Service Center Operations, issued instructions to the Service Center Directors regarding certain procedural changes. Under the new procedures, a concurrently filed I-140/I-485 should be adjudicated together. Previously, the I-140 was reviewed on an initial, cursory level simply to identify any clearly frivolous cases. The I-140 was then adjudicated independently, without regard for the processing of the I-485. The cursory, or prima facie, review was performed to avoid improper receipt of the benefits of the I-485 filing, including obtaining an Employment Authorization Document (EAD) or Advance Parole (AP). Under this Memo, concurrently filed I-140/I-485 cases will be processed and adjudicated simultaneously.
I-140 Will Not Be Processed until I-485 is Ready to Be Processed
The Ohata Memo states that, even when the I-140 is ready for processing and placed on the 'ready to adjudicate' shelf, it will not be processed unless the I-485 is also ready for adjudication. The I-485 is not ready until the fingerprints and name checks have cleared. Essentially, the I-140 will be held in abeyance until these procedures have been completed in connection with the I-485. This raises significant concerns for the application of AC21 portability. AC21 portability, as interpreted under current USCIS memoranda, requires an approved I-140 and an I-485 that has been pending for 180 days. Thus, delaying the I-140 adjudication until the I-485 can be approved inevitably will curtail the ability to use AC21 portability in most cases under these current USCIS interpretations. Of course, since AC21 is only available for long-delayed cases, if the new process speeds adjudications to within a six-month period, AC21 portability is not an available option. While we would certainly favor case adjudications within fewer than 180 days, current processing times are approximately two to five times this timeframe. Thus, this may not be a realistic goal, at least in the near future.
RFEs on I-140 and I-485 Should be Issued Separately
The Memo directs that Requests for Evidence (RFEs) be issued separately on I-140s and I-485s, for legal reasons. If both the I-140 and I-485 are issued RFEs, the entire case will await the responses. If there is a response to the I-140 but not the I-485, the I-140 will be adjudicated and the I-485 denied. If there is no response to the I-140, both cases will be denied, whether or not there is a response to the I-485.
Prima Facie Review of I-140 Not Required in Non-Concurrent Cases
The Ohata Memo states that with a non-concurrently filed I-140, I-485, I-765 (EAD), and I-131 (AP) filings will continue to be processed as before. However, the Service Center Directors have discretion to end the prima facie review or modify the scope of that review. It is not clear from this whether the prima facie review would be eliminated in order to allow for complete case adjudication at one time. It would seem difficult to accomplish this, in light of the need for fingerprinting and background checks for the I-485. However, it is doubtful that the AP or EAD would be issued without some review of the basic legal sufficiency of the I-140 petition.
NSC’s Implementation of the Ohata Memo
The Nebraska Service Center (NSC) issued information regarding its plan to implement the new concurrent filing procedures. It has taken various internal reorganization efforts to permit the concurrent processing of I-140s/I-485s effective from April 30, 2004. The NSC notes that this was not part of the pilot program to adjudicate the I-140s/I-485s within 75 days of filing. The NSC also emphasizes that it anticipates a slow-down in processing non-concurrent I-485s, as they will be processing the concurrent and non-concurrent on separate tracks, giving priority to concurrently filed I-140s and I-485s over those that are not filed concurrently.
What Will Happen to Your Case?
At this point, it is not entirely clear exactly what this will mean for one's case. The purpose of the new procedures appears to be to reduce processing times and increase efficiency. Holding the I-140 adjudication until the I-485 can be approved, however, may end up slowing the I-140 processing. If the I-140 is not approved, then AC21 is held not to apply under current interpretations of the interplay between AC21 law and concurrent filing. If processing is not completed in a reasonable time, and AC21 portability cannot be used, this may mean that more cases will be denied if there is a termination of the employer’s sponsorship of the I-485 applicant, for any reason.
Given staffing shortages, whenever one type of case processing is given priority, another type suffers. This is what the NSC seems to be stating with their information about anticipated delays in those cases that are filed non-concurrently. Of course, if the I-140s and I-485s could be processed more quickly, time could be saved, as there would be far fewer requests for EADs and APs. Faster processing would also eliminate the need for AC21 portability since it would not apply if the I-485 is adjudicated within 180 days of filing. At this point, we will be closely monitoring the progress report on the various Service Centers regarding this matter, and will share this information with our MurthyDotCom and MurthyBulletin readers as the changes unfold.
