New Procedures for Concurrently Filed I-140/I-485 Cases
New Procedures for Concurrently Filed I-140/I-485 Cases
There has been a significant change in the way that the USCIS Service
Centers will process concurrently filed I-140/I-485 cases. In a March
31, 2004 memorandum (Ohata Memo), Fujie Ohata, Director of Service Center
Operations, issued instructions to the Service Center Directors
regarding certain procedural changes. Under the new procedures, a concurrently
filed I-140/I-485 should be adjudicated together. Previously, the I-140
was reviewed on an initial, cursory level simply to identify any
clearly frivolous cases. The I-140 was then adjudicated independently,
without regard for the processing of the I-485. The cursory, or prima facie,
review was performed to avoid improper receipt of the benefits of the
I-485 filing, including obtaining an Employment Authorization Document
(EAD) or Advance Parole (AP). Under this Memo, concurrently filed
I-140/I-485 cases will be processed and adjudicated simultaneously.
I-140 Will Not Be Processed until I-485 is Ready to Be Processed
The Ohata Memo states that, even when the I-140 is ready for processing
and placed on the 'ready to adjudicate' shelf, it will not be processed
unless the I-485 is also ready for adjudication. The I-485 is not ready
until the fingerprints and name checks have cleared. Essentially, the
I-140 will be held in abeyance until these procedures have been
completed in connection with the I-485. This raises significant concerns for
the application of AC21 portability. AC21 portability, as interpreted
under current USCIS memoranda, requires an approved I-140 and an I-485
that has been pending for 180 days. Thus, delaying the I-140 adjudication
until the I-485 can be approved inevitably will curtail the ability to
use AC21 portability in most cases under these current USCIS
interpretations. Of course, since AC21 is only available for long-delayed cases,
if the new process speeds adjudications to within a six-month period,
AC21 portability is not an available option. While we would certainly
favor case adjudications within fewer than 180 days, current processing
times are approximately two to five times this timeframe. Thus, this may
not be a realistic goal, at least in the near future.
RFEs on I-140 and I-485 Should be Issued Separately
The Memo directs that Requests for Evidence (RFEs) be issued separately
on I-140s and I-485s, for legal reasons. If both the I-140 and I-485
are issued RFEs, the entire case will await the responses. If there is a
response to the I-140 but not the I-485, the I-140 will be adjudicated
and the I-485 denied. If there is no response to the I-140, both cases
will be denied, whether or not there is a response to the I-485.
Prima Facie Review of I-140 Not Required in Non-Concurrent Cases
The Ohata Memo states that with a non-concurrently filed I-140, I-485,
I-765 (EAD), and I-131 (AP) filings will continue to be processed as
before. However, the Service Center Directors have discretion to end the
prima facie review or modify the scope of that review. It is not clear
from this whether the prima facie review would be eliminated in order
to allow for complete case adjudication at one time. It would seem
difficult to accomplish this, in light of the need for fingerprinting and
background checks for the I-485. However, it is doubtful that the AP or
EAD would be issued without some review of the basic legal sufficiency
of the I-140 petition.
NSC’s Implementation of the Ohata Memo
The Nebraska Service Center (NSC) issued information regarding its plan
to implement the new concurrent filing procedures. It has taken various
internal reorganization efforts to permit the concurrent processing of
I-140s/I-485s effective from April 30, 2004. The NSC notes that this
was not part of the pilot program to adjudicate the I-140s/I-485s within
75 days of filing. The NSC also emphasizes that it anticipates a
slow-down in processing non-concurrent I-485s, as they will be processing the
concurrent and non-concurrent on separate tracks, giving priority to
concurrently filed I-140s and I-485s over those that are not filed
concurrently.