By Stanley Mailman and Stephen Yale-Loehr**

While the Immigration and Naturalization Service (INS or Service) is seldom seen as efficient or flexible, its intransigence has limits. In a rule issued late last month, the agency has reverted to a procedure that it abandoned almost eleven years ago. See 67 Fed. Reg. 49,561 (July 31, 2002) (interim rule), amending 8 C.F.R. Parts 204, 245, 299 to restore filing eligibility to the status quo ante before the changes wrought at 56 Fed. Reg. 49,839 (Oct. 2, 1991). The rule again allows the filing of an application for adjustment of status to permanent residence simultaneously with an underlying visa petition based on the immigrant’s skills or employment experience. While the rule is merely procedural, it is likely to make a big difference in the lives of many immigrants. How it can do so is discussed below.

Overview

As background, obtaining permanent resident status (also known as a “green card”) involves at least two filings. One is usually a petition to establish that the immigrant is entitled to allocation of a visa number in one of the employment-based (EB) or family preferences, or is an “immediate relative” of a U.S. citizen and doesn’t need a visa number. The other filing, which assumes INS approval of the visa petition, often presents a choice: the applicant may either seek an immigrant visa at a U.S. consular post abroad, or apply to the INS for adjustment of status in the United States.

Until 1991, a green card candidate who wanted to adjust status was often able to telescope the two filings. Take an engineer for whom a labor certification was issued. She could file for adjustment in the same mailer as the EB visa petition, assuming that visa numbers were available for the priority date established by her labor certification. In 1991, soon after Congress established a new set of EB preference categories, the INS discontinued concurrent filing for EB applicants. It did so to concentrate the processing of EB petitions at the four INS regional service centers, where “adjudicators could more efficiently make visa petition determinations given their enhanced knowledge of employment based immigration issues.” 56 Fed. Reg. 49,839, 49,839 (Oct. 2, 1991) (supplementary information). Concurrent filing has remained in place at local INS offices for certain family-sponsored green card petitions, principally for immediate relatives of U.S. citizens.

The new INS rule allows concurrent filing of immigrant visa petitions and adjustment of status applications for the three main types of employment-based immigrant visa categories: EB-1 for outstanding professors and researchers, multinational managers and executives, and people with extraordinary ability; EB-2 for people who have advanced degrees; and EB-3 for people who have at least a bachelor’s degree and for skilled and unskilled workers. These applications are filed on INS Form I-140. Under the rule, people in these categories may file concurrently only if an immigrant visa is immediately available to them. Luckily, right now there are no backlogs in any of the employment-based green card categories. See the State Department’s Visa Bulletin at http://travel.state.gov/visa_bulletin.html.

The new rule applies to both new filings and to I-140 petitions already pending with the INS. If an EB-1, -2, or -3 petition is pending, an immigrant may obtain the benefits of concurrent filing by filing the adjustment of status application, together with the applicable fee and a copy of the I-140 receipt notice. The interim rule also allows a foreign worker to apply for work authorization and for travel permission (known as advance parole) while the adjustment of status application is pending.

Advantages of Concurrent Filing

Being able to file an adjustment of status application without waiting for the immigrant visa petition to be approved first has several advantages. First, it helps nonimmigrants whose temporary visa status is about to expire. The work authorization they are granted while their adjustment applications are pending allows them to continue working. Moreover, they can take additional and unrelated jobs.

Second, the new rule aids applicants who are anxious to sever their relationship with an immigrant visa sponsor. Under INA § 204(j), 8 U.S.C. § 1154(j), if an adjustment application has been pending for 180 days or more, the applicant may change jobs or even employers, without affecting the validity of the immigrant visa petition, as long as the new job is in the same or a similar occupational classification as the job for which the immigrant visa petition was filed. See generally Angelo A. Paparelli & Janet J. Lee, “A Moveable Feast”: An Analysis of Adjustment of Status Portability under AC21, 6 Bender’s Immigr. Bull. 577 (June 15, 2001). Because the new rule allows workers to file for adjustment more quickly, they are now free to move to a new, related job earlier. Does the portability language in INA § 204(j), which preserves the validity of the visa petition, presume that it has already been approved? And how does it apply to concurrent filing of the petition and the adjustment of status application? The language seems flexible enough to cover a petition that is filed concurrently and not yet approved. Assuming the petition is otherwise approvable, the examiner should approve it even though the beneficiary no longer intends to work in the position it describes, but rather in a related occupation. But if the petition is otherwise deficient, the adjustment of status application is unlikely to survive.

Third, concurrent filing can help family members. The spouse and children of nonimmigrant workers can join the breadwinner, but they normally aren’t allowed to work. However, once the principal applicant files for adjustment, those family members can file for adjustment too and obtain work authorization. They can do this more quickly now, thanks to the new rule.

Fourth, concurrent filing may shorten the overall time it takes to obtain permanent resident status. The INS will look at both filings at the same time, thereby improving efficiency. And the faster an immigrant gets the green card, the sooner she is eligible for citizenship and for such benefits as petitioning for other family members.

Fifth, concurrent filing can help people who want to travel abroad but whose temporary visas have expired. By obtaining advance parole as part of the adjustment process, they do not need to obtain a new nonimmigrant visa at a consulate. This can be particularly important given the recent delays in visa issuance owing to new security clearance procedures.

Sixth, concurrent filing can prevent unlawful presence from accruing. A person who has been unlawfully present in the United States for 180 days or longer and then leaves the country for any reason, even to pick up an immigrant visa at a U.S. consulate, is barred from returning for three years. INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B). See generally Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 63.10[2] (rev. 2002). But a properly filed adjustment application stops the unlawful presence clock. See Memorandum from Johnny Williams, INS Executive Associate Commissioner, Office of Field Operations, to all INS offices, Unlawful Presence, File No. HQADN 70/21.1.24-P (June 12, 2002), available at http://www. aila.org/infonet (document no. 02062040) (last visited Aug. 9, 2002). As concurrent filing permits earlier filing of the adjustment application, it may obviate an unlawful presence problem.

Potential Problems with Concurrent Filing

Concurrent filing also raises several concerns. First, if the INS denies the I-140 immigrant visa petition, the adjustment applications for the whole family go down, together with work authorization and travel permission. Unless the adjustment applicants have preserved their nonimmigrant status, they may have to depart the United States immediately or face removal proceedings. See generally Matter of Hosseinpour, 15 I. & N. Dec. 191 (BIA 1975) (F-1 student); 64 Fed. Reg. 29,208, 29,210 (June 1, 1999) (retaining H-1 or L-1 status by continuing work for the petitioner),

Second, adjustment applicants whose I-140 visa petitions are denied will lose a substantial investment in time and filing fees. Each adjustment application can cost roughly $300-600 in filing fees alone for the INS forms, medical exam, fingerprinting and photos. And an application that relies on INA § 245(i), 8 U.S.C. § 1255(i), requires an additional penalty fee of $1000.

Third, although the INS hopes that the new concurrent filing rule will eventually speed up the adjudication process and make it more efficient, processing times could increase in the short term, as the Service works out the kinks in the new system and faces a slew of accelerated filings.

Conclusion

The restoration of concurrent filing has been too long in coming. On the whole, the procedure will benefit most applicants eligible to use it. We urge caution, however, particularly where approval of the I-140 immigrant visa petition is not clear cut.

Although the interim rule took effect upon its publication July 31, the Service is accepting comments until September 30. Presumably the INS will resolve some of the issues identified above when it finalizes the rule. For example, we hope that the INS will allow a grace period for immigrants to apply for nonimmigrant status if their immigrant visa petition and adjustment application are denied. This could be analogous to the 60-day grace period the INS is considering for H-1B visa holders who have been terminated by their employers. See Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner, Office of Programs, to all INS field offices, Initial Guidance for Processing H-1B Petitions as Affected by the “American Competitiveness in the Twenty-first Century Act” (Public Law 106-313) and Related Legislation (Public Law 106-311) and (Public Law 106-396), File No. HQPGM 70/6.2.8 (June 19, 2001), reproduced in 78 Interpreter Releases 1108 (July 2, 2001).

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* This article originally appeared in the August 26, 2002 issue of the New York Law Journal. Copyright © 2002 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration law at Cornell Law School. He can be reached at mailto:syl@millermayer.com.