BCIS Policy to Block Abuse of I-140/I-485 Filing
The concurrent I-140/I-485 filing is supposed to permit the alien a number of benefits, including toll of unlawful presence, resuming a legal status pending adjudication of I-485, availability of work permit card and advance parole for international travel, and similar benefits to the accompanying family members. Additionally, there was an unanswered question as to whether or not 180-day rule of AC 21 would be attached to such alien no matter whether the underlying I-140 petition is approved within 180 days.
The agency initially answered this question by adopting a policy that I-140 petition would be adjudicated in 60 days and pending adjudication of I-140, the agency would not grant EAD and Advance Parole. However, this policy left another question unanswered regarding the impact of I-140 denial on the pending I-485. Under the law, I-485 remains intact unless it is denied as separate from the denial of I-140. Traditionally, the agency followed a practice of denying I-140 petition and acting on the pending I-485 separately which usually took time. In order to prevent the abuse of such practice, the agency recently instructed the field offices to deny all the accompanying applications including I-485, I-485A, I-765, and I-131 "simultaneously" when the field offices deny the underlying I-140. Accordingly, unless the I-140 petition is prima facie eligible, the concurrent filing of I-140/I-485 could bring damages to the aliens, including waste of a large amount of filing fees and in the case of 245(i) filing, exposure of illegal status and adverse evidence to the agency. Concurrent filing is not a panacea for everyone!
Reportedly the agency has been receiving concurrent filing from aliens who failed to meet the prima facie eligibility and I-140/I-485 filing was particularly abused by labor certification waiver cases such as National Interest Waiver. Without doubt, this new policy will reduce the number of frivolous filing or eligibility-suspect case filings.
The concurrent I-140/I-485 filing is supposed to permit the alien a number of benefits, including toll of unlawful presence, resuming a legal status pending adjudication of I-485, availability of work permit card and advance parole for international travel, and similar benefits to the accompanying family members. Additionally, there was an unanswered question as to whether or not 180-day rule of AC 21 would be attached to such alien no matter whether the underlying I-140 petition is approved within 180 days.
The agency initially answered this question by adopting a policy that I-140 petition would be adjudicated in 60 days and pending adjudication of I-140, the agency would not grant EAD and Advance Parole. However, this policy left another question unanswered regarding the impact of I-140 denial on the pending I-485. Under the law, I-485 remains intact unless it is denied as separate from the denial of I-140. Traditionally, the agency followed a practice of denying I-140 petition and acting on the pending I-485 separately which usually took time. In order to prevent the abuse of such practice, the agency recently instructed the field offices to deny all the accompanying applications including I-485, I-485A, I-765, and I-131 "simultaneously" when the field offices deny the underlying I-140. Accordingly, unless the I-140 petition is prima facie eligible, the concurrent filing of I-140/I-485 could bring damages to the aliens, including waste of a large amount of filing fees and in the case of 245(i) filing, exposure of illegal status and adverse evidence to the agency. Concurrent filing is not a panacea for everyone!
Reportedly the agency has been receiving concurrent filing from aliens who failed to meet the prima facie eligibility and I-140/I-485 filing was particularly abused by labor certification waiver cases such as National Interest Waiver. Without doubt, this new policy will reduce the number of frivolous filing or eligibility-suspect case filings.