I-140 and I-485 concurrent filing on TN

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sunflower101

New Member
I see curious george advised not to do concurrent filing of I-140 and I-485 while on TN. But my lawyer says concurrent filing is fine and even if my I-140 get rejected for any reason, I will still be able to work with TN. Is that correct?

Thanks.
 
I would say that the lawyer is not quite correct, for the following reason:

Once you file I-485, you can only continue to work on TN as along as (a) it doesn't expire AND (b) you don't leave the country. that is why it is recommended to file I-485 when you have sufficient time left on TN and are willing to stay in US for a period (3-4 month minimum)
As curiousgeorge warns, If your I-140 is rejected/delayed/RFE'd, it may take time to either fix the I-140 or -- if I-140 cannot be fixed -- retract the I-485, which may be too late for your to continue on TN (ie. if it expires of you need to leave US for some reason).

It is unclear how long a "dead" I-485 stays on your file, but, I would think that that I-485 would be clear immigrant intent for quite a while.

So, if you file concurrently, and I-140 is rejected, yes, you can still work on your current TN, but only until it expires, or until you leave the country, whichever is soonest. That is not the best situation, and can be avoided by waiting for I-140 to be approved before filing I-485.

is there some particular reason that your lawyer is unwilling to wait to file I-485?
 
Thanks. Both the lawyer and company's immigration team are saying their I-140 success rate is high and I should not bother waiting for I-140 approval. But I understand there is a little risk which can be easily avoided by waiting 2 weeks with I-140 premium processing.
 
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Remember that immigration lawyers that deal in employment GC's do so predominantly with H1 employees, and are not well-versed in TN matters. With H1, there is no risk of losing your status if concurrent filing hits a snag.

*High* success rate = *some* failure rate = *some* risk of losing ability to remain working.
 
One scenario here, I could not find any confirmed answer anywhere. Can we apply I-485 with I-140 receipt number only? As per my lawyer if we do not go for concurrent filing then I have to wait for the I-140 paper approval notice before we can apply for I-485. I feel it takes away some control from me because if I get a RFE for I-140 and that lingers for couple of months then I will be stuck with my I-485 application without submitting it. My TN is valid till 2021 and visa is current for October filing. Any thoughts?
 
You can file I-485 anytime after submitting I-140, that is still considered "concurrent".

https://www.klaskolaw.com/faq/concurrent-filing/

"Concurrent filing, which became permissible under an interim rule announced on July 31, 2002, allows persons applying for permanent residence to submit the Form I-485, Application to Register Permanent Residence or Adjust Status, either along with a Form I-140, Immigrant Petition for Alien Worker, or after the I‑140 is filed but before it is approved, as long as there is no quota backlog in their immigrant category."

Does this really help you though?
 
As curious george and other recommend, i also recommend you file i-140 premium processing, wait for two weeks for approval, then file i-485. if you have a solid case it should be approved with no rfe. Since your TN is valid till 2021 you have lots of time. I think it will give you better "piece of mind" knowing that you passed the i-140 stage before starting i-485 stage. note current processing times for EAD/AP is about 4.5 to 6.5 months in National Benefits Center (MSC). So you will have to stay in US until you have Advance Parole in hand.
 
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