AC21 -- INS Restricts Portability Eligibility

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INS Restricts Portability Eligibility in Concurrent Filings.

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According to the AILA source and the information shared at Wednesday's meeting, the INS has indicated that the I-140 will not be adjudicated until the I-485 is adjudicated. Furthermore, the INS has taken the position that this portability can only be enjoyed by an applicant for adjustment of status whose I-140 petition has been approved. Since applicants for adjustment who apply pursuant to their new ability to file concurrent I-140 and I-485 filings will not have an approved I-140 during the pendency of the adjustment, these applicants will NOT be eligible for the benefits of Section 106(c).
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I guess it say's that one will not be eligible for AC21 if I-140 is pending. AC21 includes a provision (§106(c)) which allows for a change in employment (in the same or similar profession) in cases of lengthy adjustment adjudications.

INS is saying that if I-140 is still pending then one has to wait for untill it's get approved to change employment under AC21....even if it has been more than 180 since you have filled 485.

Comments/views are always welcome....
 
Jharkhandi .........

"I-140 will not be adjudicated until the I-485 is adjudicated

I am also trying to find out what above phrase is....can someone comment on that....
 
It is a luncheon meeting - don't trust. The concurrency of filing of 140 and 485 is only till immigration visa ia available - means if processing won't remain current then you cannot file 485 simultaneously.

Just think - does not it means people will get 485 done and GC in hand and then file 140? Even in present situation - why then have three stages - why don't they reduce it to two if "I-140 will not be adjudicated until the I-485 is adjudicated." Someone was definitely drunk in the party.

:D

I feel if 140 is pending then AC21 should not be applicable - that is fair. But then for 180 days calculation, one should have 485 filing date as basis for AC21 if 140 is done. Not sure if this is what INS is doing?
 
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Jharkhandi

Ya might be right "Someone was definitely drunk in the party"

But I guess what they are thinking that someone might try to change employer after filling I-140/485 together and passed 180 day's. They are saying, "Don't try to use AC21 if your I-140 is pending even if you have filled 485 along with it and it has been already 180 day's."

Just one big question: From when they will start calculating # of days for AC21 (when I-140/485 filled together); from the day they have recieved 485 or from the day 140 was approved...
 
AC21 is very ill-defined - no one knows for sure how it works and what it means! Rationally I think 180 days should be calculated from day of 485 filing, but advantage of AC21 can be taken only if 140 is cleared.
 
This is a very disturbing piece of news indeed (at least for me). I was going to file I-140/I-485 in the next few days but now I guess I'll have to wait until this matter is cleared up. If it is indeed true then it means a lot of us will be better off not filing concurrently. I had assumed that INS would begin working on I-140 and I-485 at the same time and each would take its normal processing time. Why would they decide to not adjucate I-140 until I-485 has been approved? Let's hope this is only a big misunderstanding.
 
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Right now 60 days comment period is going on(Started on July 31, 2002).

But again I would insist someone was too drunk.

:o
 
Please take note of this

This was posted on TexasImmigration- an extract from USLAWNET
http://www.uslawnet.com/Library/concurrentfilingsvsc.htm

VSC Update on I-140/I-485 Concurrent Filings

Cite as "Posted on AILA InfoNet at Doc. No. 02082041 (Aug. 20, 2002) ."

VSC Liaison Chair, Christopher Stowe, received the following e-mail correspondence from Keith J. Canney concerning the Vermont Service Center’s response to the INS’s interim regulation allowing concurrent filings of Forms I-140 and I-485. The VSC Committee received inquiries from many AILA members who commented that after July 31, 2002, they experienced a wide range of reactions that included the return of the I-485, denials on the I-485 and supervisors advising that VSC is not accepting concurrent I-140/I-485 filings.
> Subject: Re: follow up on concurrent filing

> Chris,
>
> This message will address the concerns set forth in this message as well as the previous message you had forwarded. Concurrent filings present many new workflow challenges to VSC. We are currently working with our contractor to solidify many of the new processes that are required.

> We are currently accepting all properly filed concurrent I-140/I-485 filings.

> We have been instructed to reject (not accept) I-140/I-485 filings where the I-140 requires a labor certification, but one has not been included with the submission. Cases in this scenario would not be considered properly filed.

> It also appears that we will be required to review concurrent I-140 submissions immediately following fee receipt to determine if a filing is frivolous (e.g. E11 nanny - not eligible under any of the fields set forth in E11 regs). We will deny cases that are considered frivolous without the issuance of an RFE.

> As the standard for "frivolous" is still somewhat vague for various I-140 classifications, VSC is awaiting further guidance from HQ [Headquarters] before we take any such action.

> You posed the question of processing time of I-140s filed independently versus those filed concurrently. At this point, HQ would like us to work concurrently filed I-140s within 60 days of receipt. This will allow us to work an I-765 and/or I-131 before the applicant is eligible for an interim card at the 90 day mark. Given current adjudicative priorities, delayed processing times (on cases such as I-129s), and required IBIS security checks, working concurrently filed I-140s within 60 days will definitely be a challenge to VSC.

> The day the concurrent filing rule appeared in the Federal Register, we [notified] the information officers that we are accepting said cases. We have reminded them of such so as to avoid any confusion in the future. If erroneous information is being provided, it is helpful if the information officer's name could be provided. We can then address the issue directly rather than send out a generic reminder to the masses.

> Keith
 
All...

Taken from Immigration_law.com:

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Updated 09/19/2002: Unresolved Issues and Drawback of I-140/I-485 Concurrent Filing
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This web site brought up two critical issues as soon as this regulation was released: Whether or not I-140 will be held up until the time I-485 is adjudicated and then adjudicate two proceedings concurrently. The second issue was its impact on AC-21 180-day rule. The concurrent filing has without doubt a number of benefits including, among others, EAD, Advance Parole, tolling of unlawful presence for the purpose of 3-year or 10-year bar, etc. At the same time, it creates some drawbacks because of the unresolved issues and uncertainty of the INS policies.

Informed sources indicate that these two issues are still up in the air and the concurrently filed cases are held up until these policy issues are resolved at the INS HQ, except the cases which are denied on the grounds of IBIS hit or frivolous nature of I-140 filing, in which cases both I-140 and I-485 are returned to the applicant with the notice of denial. The INS HQ remains silent on these two issues, despite the request for answers by various sources including the AILA and this web site. More troubling is that the sources indicate that when I-140 petition had already been filed at the time the concurrent filing regulation was released and I-485 application is filed afterwards with the Receipt Notice of I-140, some offices pull out the pending I-140 petition and keep it with the I-485 applications to await the HQ decision. Thus the I-140 petition which could have been adjudicated unless I-485 is filed as a concurrent filing appears to be held up pending the policy decision. The INS HQ released to the AILA a few days back that I-140 would be adjudicated in 60 days to avoid EAD being issued for unqualified I-140 petitions, but it appears that it was to detect and deny certain I-140/485 cases rather than adjudicating all the concurrently filed I-140 cases separately. It is hoped that the INS resolve these issues as soon as possible.
 
ALL...

Interesting and informative analysis

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While it might appear that concurrent filing is for everybody, here are a few examples of those who might want to reconsider and some reasons why [they might want to reconsider]:
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a) An I-140 beneficiary working for an I-140 employer sponsor who may not immediately have the ability to pay the beneficiary the offered salary for the proposed position:

b) An I-140 beneficiary whose employer has promised to pay a higher wage (as indicated on the application for labor certification) but who is currently paying less than that amount:

c) ANY I-140 beneficiary who does not yet have ANY of the requirements that may need to be established in order for an I-485 to be approved! (Language exams and certification requirements such as those required for healthcare professions come boldly to mind in this regard.)

d) A cautious applicant/beneficiary of an EB-1 or EB-2 (National Interest Waiver) I-140 petition: While we commonly file EB-1 and EB-2 I-140 petitions and have been very fortunate with our record of success, these categories are known for being unpredictable. The amount of discretion INS officers have in adjudicating these categories is tremendous. Thus, the risk of denial cannot be overlooked in any such filing. Given this, a false sense of security (not to mention an unnecessary investment of funds toward the I-485) may result when an EB-1 or EB-2 (NIW) based I-140 is the basis of a concurrent filing.

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SOURCE: usvisanews.com.....
 
I agree to point c) and d), but for a) and b) - it is arguable as most of the points will be same for concurrent filing or otherwise.

:o
 
Hi guys,

I have a question, which would help me decide wether to go for concurrent process or not?

I heard that in concurent processing both i-140& i-485 get adjudicate at the same time is it True?

But in CSC i-140 are getting approved first and then it is going to a next step
this is the only service centre where results are coming out for concourrent filling application so please respond what is the process in case of concurrent filling and also read this article does this make any sense.


http://www.usvisanews.com/memo1851.html

INS Restricts Portability Eligibility in Concurrent Filings

We received some new and somewhat surprising information from Madeline Garcia following her attendance at an American Immigration Lawyers Association (AILA) South Florida luncheon on Wednesday (September 17th). Among the wealth of information she absorbed was the information relating to portability in the context of concurrent I-140/I-485 filings.

As you may be aware, AC21 includes a provision (§106(c)) which allows for a change in employment in cases of lengthy adjustment adjudications. What this allows for is the substitution of a new sponsor and offer of employment (in the same or similar profession) into a pending adjustment application if the I-485 has been filed and remained unadjudicated for 180 days or more.

Many of you have been writing to us asking us a couple of important questions such as:

1. Will the I-140 still be processed first?
______ - AND -

2. How will concurrent filing work in the context of I-485 portability?


According to the AILA source and the information shared at Wednesday's meeting, the INS has indicated that the I-140 will not be adjudicated until the I-485 is adjudicated. Furthermore, the INS has taken the position that this portability can only be enjoyed by an applicant for adjustment of status whose I-140 petition has been approved. Since applicants for adjustment who apply pursuant to their new ability to file concurrent I-140 and I-485 filings will not have an approved I-140 during the pendency of the adjustment, these applicants will NOT be eligible for the benefits of Section 106(c).

This information may change in the future since regulations have not been drafted. However, INS' comments highlight significant implications for many prospective concurrent applicants and reinforce that the new concurrent filing option, though very appealing, may not be for everyone.
 
Chinnacc

It's too early too comment on concurrent I-140/485 processing. Visa processing centers are processing application differently....So who knows what is going to happen...

I guess if immediate relief (like H1 expiring and you have to maintain status or ERD for spouse or need work authorization) by filling 485 along with 140, wait for couple more months and then decide.....
 
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