Concurrent Filing of I-140 and I-485 Applications

The U.S. Citizenship and Immigration Services (USCIS) launched a nationwide initiative in April 2004 to establish special adjudication procedures for concurrently filed I-140s and I-485s in employment-based immigrant visa petitions where a visa number is immediately available. Generally, in a concurrent filing, both the immigrant visa petition (I-140) and the application for adjustment of status (I-485) are submitted to the USCIS at the same time.¹ In a memorandum from Fujie Ohata, Director of Service Center Operations, to her subordinate Service Center Directors ("Ohata Memo"), Director Ohata ordered that concurrently filed I-140/I-485 applications be adjudicated by a single, specially-established team based on the initial filing date of the I-140 rather than the I-485. The Ohata Memo gave the Service Centers until April 31, 2004, to implement procedures to concurrently adjudicate I-140/I-485 filings. Prior to the issuance of this memorandum, the Service Centers were first adjudicating the I-140 immigrant visa petition and then returning the file to the processing queue for eventual adjudication of the I-485 application(s).

In response to the Ohata Memo, the California and Nebraska Service Centers announced pilot programs to rapidly adjudicate concurrently filed I-140/I-485 applications. The California Service Center (CSC) announced they would adjudicate within 90 days of filing those "pure" (same day) concurrently-filed I-140/I-485 applications that are based on approved labor certifications for qualified immigrants with advanced degrees (EB2), excluding those applications based on a national interest waiver. CSC Director Don Neufeld announced at a March 31, 2004 meeting with the American Immigration Lawyers' Association that the 90-day adjudication would be subject to clearance of fingerprints and name checks. A CSC spokesperson indicated that as part of the Pilot Program, CSC will also try to clear out EB2 concurrent cases filed previously within the coming months. One goal of the program will be to adjudicate applications fast enough to eliminate the need for EAD and Advance Parole documents. In addition to the CSC's pilot program, the CSC will also be making a concerted effort to reduce the processing times on all concurrently filed petitions to meet the goals of the Ohata Memo. This means that in addition to the pure concurrently filed EB2 applications, the USCIS will also be prioritizing all concurrently filed applications.

Meanwhile, the Nebraska Service Center (NSC) announced it had initiated a pilot program to adjudicate I-140/I-485 applications within 75 days of filing, but it was unclear immediately which types of applications would be included in the NSC Pilot Program. The NSC announced that it hopes to lower total processing times on all I-140/I-485 concurrent filings to less than one year.

Jackson & Hertogs will continue to monitor these programs, and ensure that our clients take full advantage of available expedited processing procedures. However, it is important to note that these procedures could be changed or discontinued by the USCIS at any time without prior notice. At this time, we do not believe that it would be beneficial for individuals with pending I-140 visa petitions and adjustment of status applications to withdraw those applications and re-file to take advantage of the programs for "pure" concurrent filings. The USCIS has clarified that concurrently filed I-140/I-485 cases that are currently in their adjudication pipeline will be processed under the Ohata Memo standards and, as such there would be no need to refile these applications to benefit from the new procedures. Also, those individuals with already approved I-140 immigrant visa petitions are not eligible for consideration under concurrent filing.

[1] Concurrent filing also allows for the I-485 to be filed after a receipt is issued for the I-140 immigrant visa petition. For purposes of ease, we refer to this as a "catch up" concurrent. When both applications are physically filed at the same time, we refer to this as "pure" concurrent.