Good news for alien workers who's
employer is petitioning for their permanent residence: a few days ago, the INS released a
new rule which allows the I-140 employment-based green card petition to be filed in
conjunction with the application for adjustment of status. So far, the I-140 petition
needed to be approved first before the adjustment of status application could be filed.
Why did the INS set this new rule? The agency deemed it necessary "to improve both
efficiency and customer service." This new policy makes the employment-based green
card application process faster, and at the same time, gives the applicants some leeway
for maintaining their status while the non-immigrant visa is about to expire. Furthermore,
the spouses and children of I-140 applicants can receive their work documents faster.
However, the rule doesn't apply to applicants who seek their green cards at a U.S.
consulate, and if there is a backlog in any of the employment-based green card categories,
the rule won't apply either. Currently, there are no backlogs, but the possibility is
always there.
Here the most salient points of the
new rule:
I-140 petition and adjustment of status
application can be filed concurrently (together at the same time) by an individual. The
adjustment of status application determines if a green card applicant should be allowed
into the U.S. There is no change in how the applicant has to prepare the two petitions. At
this point, it is important to know that a visa number must be immediately available in
order to be able to apply for adjustment of status.
Visa number availability can be viewed
at the U.S. Department of State
website. The State Department issues a monthly bulletin that tells the position of the
numbers in each of the employment and family based green card categories.
Not all employment-based green card
categories are affected by this new rule. The rule applies only to EB-1, EB-2 and EB-3
green cards. Category EB-4 (religious workers) and EB-5 (large investors) are excluded
from the new rule.
The new rule also applies to physicians
who seek national interest waivers. However, it contains one change: the special
requirements notice will be issued by the INS when they receive the I-140, and not when
the adjustment of status application is received.
If you want to leave the U.S. while
your application for adjustment of status is pending, you can file an I-131 document
called Advance Parole that allows you to travel in and out of the country while you wait
for the adjustment of status application to go through. It is important to know for
certain I-140 applicants that there are some restrictions on reentering the country. (For
example, if you were ever out of status while living in the U.S.) Get advice from a lawyer
on these restrictions and make sure they don't apply to you.
If your I-140 is currently pending, you
will be allowed to file an adjustment of status application. Applicants should include the
I-797 receipt notice for the I-140 petition when they submit the adjustment documents.
If there was no visa number available
when the I-140 was filed, but later on, a number becomes available, submit the adjustment
of status package with the I-797 receipt notice.
If you are about to be deported, he
adjustment of status application has to be filed with the immigration court, not with the
INS.
In case your I-140 petition is denied,
you will appeal at the Board of Immigration Appeals, and you will have to to file your
adjustment of status application directly with the Board.
Filing for adjustment of status under
this new rule does not protect you from being deported. Whether you filed with the
Immigration Court or the Board of Immigration Appeals, it will make the approval process
faster, if your appeal is won.
While you file the I-140 petition, you
can also apply for a work permit, or employment authorization document (EAD), form I-765.
It is part of the adjustment of status package.
We hope that this new rule will make
your immigration process faster and easier. Good luck!
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