Update
From: www.immigration-law.com
Updated 11/02/2002: I-140/485 Concurrent Filing Rule Clarification
When the INS launched the concurrent filing procedure, there were a few questions which had not been answered by the INS. The following are the clarification by the INS HQ as of now:
Jurisdiction: When the job site is different from one's residence for whatever reasons, people should follow the following rules:
If I-140 is already approved, people will be allowed to file with either the Service Center that has jurisdiction over I-140 or the Service Center that has jurisdiction over I-485.
If I-140 and I-485 are filed together concurrently, it should be filed with the Service Center that has jurisdiction over I-140 and not the Service Center that has jurisdiction over I-485.
If I-140 has already been filed and one files I-485 afterwards but while the I-140 is still pending, such I-485 must be filed with the Service Center where I-140 is pending.
I-140 jurisdiction is determined by one of the following factors: (1) Job site as shown on labor certification application, or (2) Main business office location of the employer if the labor certification was filed for undetermined location, or (3) If employer has a sole jurisdiction arrangement with any Service Center, that Service Center has jurisdiction over I-140, however, the Service Center that has jurisdiction over the job site on the labor certification may also be able to exercise jurisdiction over the I-140, or (4) If a self-petition, where the alien resides.
I-485 jurisdiction is determined by the alien's place of residence.
In any event, the best policy is to file I-485 with the Service Center which has jurisdiction over the I-140, no matter whether I-140 has already been approved or still pending.
Processing of the Concurrently Filed I-140 and I-485: The INS bifurgates the proceedings. Initially it was unclear, but the INS HQ confirms that the two are processed separately. Therefore, I-140 will be first adjudicated as separate from I-485, and the Service Centers will issue Receipt Notice and Approval Notice as if I-140 was filed independently. This decision helps the people who need to utilize 180-day change of employer rule under AC 21 since the I-140 Receipt Notice will be issued early on. Additionally, the Service Centers are targetting to adjudicate such concurrently filed I-140 form 60 days to 90 days.
Availability of 180-Day Rule of AC 21 Pending I-140 Petition: The INS has yet to make decision on this issue and both the INS HQ and all the Service Centers decline to answer this question as of now. This is a situation where the decision of concurrently filed I-140 takes more than 180 days for whatever reasons.
EAD/Advance Parole: Unless I-140 statutory and prima-facie eligibility review is completed or I-140 is approved, EAD and Advance Parole applications will remain "on hold." Additionally, if RFE is issued for I-140, it stops the clock of running of 90 days for the purpose of eligibility for interim EAD until the response to the EAD is received by the Service Centers. Accordingly, the concurrent I-140/485 filers should maintain his/her nonimmigrant status as long as possible not for the purpose of maintaining a legal status in this country but for the purpose of keeping employment authorization that comes with H-1B or L-1 or other employment-based nonimmigrant visa status. As far as maintaining a legal status, proper filing and receipt of I-485 automatically make such alien's legal status in this country "legal" pending adjudication of I-485. According to the recent opinion of the INS, this includes those who have returned from overseas trip and reentered the country on "advance parole" and the paroled I-94 expires pending I-485 adjudication. In the event that he/she fails to receive EAD after filing the concurrent I-140/485 and fails to maintain the employment-based nonimmigrant status for whatever reasons, he/she should stop working until EAD is received or such employment-based nonimmigrant status is resolved. For most of the employment-based nonimmigrants, filing of petition for extension, I-129, automatically grants 240 days permit for employment pending adjudication of such I-129. In this regards, the people who can face a serious trouble because of the delay of issuance of EAD will be more or less limited to those who are not in a "valid" nonimmigrant status at the time of I-140/485 filing or while he/she was waiting for EAD approval.
From: www.immigration-law.com
Updated 11/02/2002: I-140/485 Concurrent Filing Rule Clarification
When the INS launched the concurrent filing procedure, there were a few questions which had not been answered by the INS. The following are the clarification by the INS HQ as of now:
Jurisdiction: When the job site is different from one's residence for whatever reasons, people should follow the following rules:
If I-140 is already approved, people will be allowed to file with either the Service Center that has jurisdiction over I-140 or the Service Center that has jurisdiction over I-485.
If I-140 and I-485 are filed together concurrently, it should be filed with the Service Center that has jurisdiction over I-140 and not the Service Center that has jurisdiction over I-485.
If I-140 has already been filed and one files I-485 afterwards but while the I-140 is still pending, such I-485 must be filed with the Service Center where I-140 is pending.
I-140 jurisdiction is determined by one of the following factors: (1) Job site as shown on labor certification application, or (2) Main business office location of the employer if the labor certification was filed for undetermined location, or (3) If employer has a sole jurisdiction arrangement with any Service Center, that Service Center has jurisdiction over I-140, however, the Service Center that has jurisdiction over the job site on the labor certification may also be able to exercise jurisdiction over the I-140, or (4) If a self-petition, where the alien resides.
I-485 jurisdiction is determined by the alien's place of residence.
In any event, the best policy is to file I-485 with the Service Center which has jurisdiction over the I-140, no matter whether I-140 has already been approved or still pending.
Processing of the Concurrently Filed I-140 and I-485: The INS bifurgates the proceedings. Initially it was unclear, but the INS HQ confirms that the two are processed separately. Therefore, I-140 will be first adjudicated as separate from I-485, and the Service Centers will issue Receipt Notice and Approval Notice as if I-140 was filed independently. This decision helps the people who need to utilize 180-day change of employer rule under AC 21 since the I-140 Receipt Notice will be issued early on. Additionally, the Service Centers are targetting to adjudicate such concurrently filed I-140 form 60 days to 90 days.
Availability of 180-Day Rule of AC 21 Pending I-140 Petition: The INS has yet to make decision on this issue and both the INS HQ and all the Service Centers decline to answer this question as of now. This is a situation where the decision of concurrently filed I-140 takes more than 180 days for whatever reasons.
EAD/Advance Parole: Unless I-140 statutory and prima-facie eligibility review is completed or I-140 is approved, EAD and Advance Parole applications will remain "on hold." Additionally, if RFE is issued for I-140, it stops the clock of running of 90 days for the purpose of eligibility for interim EAD until the response to the EAD is received by the Service Centers. Accordingly, the concurrent I-140/485 filers should maintain his/her nonimmigrant status as long as possible not for the purpose of maintaining a legal status in this country but for the purpose of keeping employment authorization that comes with H-1B or L-1 or other employment-based nonimmigrant visa status. As far as maintaining a legal status, proper filing and receipt of I-485 automatically make such alien's legal status in this country "legal" pending adjudication of I-485. According to the recent opinion of the INS, this includes those who have returned from overseas trip and reentered the country on "advance parole" and the paroled I-94 expires pending I-485 adjudication. In the event that he/she fails to receive EAD after filing the concurrent I-140/485 and fails to maintain the employment-based nonimmigrant status for whatever reasons, he/she should stop working until EAD is received or such employment-based nonimmigrant status is resolved. For most of the employment-based nonimmigrants, filing of petition for extension, I-129, automatically grants 240 days permit for employment pending adjudication of such I-129. In this regards, the people who can face a serious trouble because of the delay of issuance of EAD will be more or less limited to those who are not in a "valid" nonimmigrant status at the time of I-140/485 filing or while he/she was waiting for EAD approval.
