Some opinion
This is taken form
www.usvisanews.com
Our office has been buzzing since the INS created the opportunity for the concurrent filing of I-140 petitions and I-485 applications for adjustment of status. Those interested include those who were preparing to become I-140 beneficiaries (and now want to file both) as well as those who are already beneficiaries of I-140 petitions (and now want to submit adjustment applications so that they may preserve lawful status, have the ability to file for employment authorization, and (presumably) experience faster processing). However, we have had a few clients thus far who we've had to honestly advise that they might want to hold off, despite their initial eagerness to file concurrently.
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]:
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: Very frequently during the adjustment of status stage, the INS issues requests for evidence asking for demonstration of the company's ability to pay the beneficiary the proposed salary and has been providing that salary from the priority date to the present. With the current economy as it is, some employers may have recently suffered financial setbacks, making recent employer income figures less than what they may have been in the past. If a company has suffered recent losses but stands to improve in the near future, it may be in the beneficiary's best interest not to rush into the I-485 filing.
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: There may exist situations where an H-1B beneficiary previously acquired H-1B status based on the prevailing wage that was current at the time the beneficiary was granted status, but since that time, there has been an increase in the prevailing wage necessitating a higher wage in order to apply for labor certification. If concurrent processing is used in this type of case, the INS may move more quickly through the I-140 and I-485 filings, and evidence that the higher wage will be paid upon the beneficiary's admission as a permanent resident may be required sooner. In this situation, if the applicant's wage has not yet been increased to the greater amount, the INS may view the discrepancy as an inability to pay the higher wage. In this way, trying to rush the process when the applicant is not yet being paid the amount indicated on the application for labor certification, the applicant's chance of having his or her permanent residency approved may be jeopardized.
Building on the preceding example, 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.)
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.
These are examples just provide some "food for thought" and are clearly not an exhaustive list of those who should think twice before filing concurrently. It is best that any beneficiary/applicant consult with an attorney fully knowledgeable of the facts of their case before the decision is made to file his or her I-140 and I-485 concurrently. In any event, we hope that the foregoing serves as a reminder that (as is usually the case) what may be good for one, is not always the best for another.
