Should You Concurrently File the I-140 and I-485?

If you are considering pursuing a green card, you may have heard of the I-140 and I-485 applications, which are two parts of the employment-based green card process.

You may have also heard that you can file these applications concurrently (at the same time). Concurrent filing is not the best decision for everyone.

In this article, we describe your options and prepare you to move forward in your immigration journey with confidence.

What is form I-140 immigrant petition for alien worker?

Form I-140 is the immigrant petition that is the basis for an employment-based green card (I-485) application.

In other words, Form I-140 gets you a 'spot in line' to file your green card. The EB-1 and EB-2 NIW are a few of the I-140 categories.

An approved I-140 does not grant you work authorization, a green card, or the ability to even enter the US. However, it paves the way for becoming a permanent resident.  

What is the form I-485 adjustment of status application?

Form I-485 is the actual "green card" application. You cannot file an employment-based I-485 unless you either have filed the I-140 first or are filing the I-140 and I-485 together. You must wait until your priority date (your place in line) is current before the I-485 can be filed. 

What are form I-131 and form I-765?

When you file your I-485 green card application, you can also file form I-131 and form I-765, which give you travel authorization (advance parole) and employment authorization (EAD), respectively.

The advance parole and EAD are alternative options for work authorization and travel documentation that you can use while your green card application is pending. Advance parole allows you to travel and return to the US without abandoning your pending green card application.

The EAD provides you with an unrestricted right to accept employment in the US while your green card application is pending. 

Should you concurrently file the I-140 and the I-485?

Concurrent filing means filing the I-140 and I-485 together. To determine whether you should concurrently file:

Step 1: Check if your priority date is current. The priority date determines if you are eligible to file the I-485. Instructions on how to determine your priority date are available here.

If your priority date is current, you can concurrently file the I-140 with the I-485. Proceed to Step 2.

If your priority date is not current, then you do not have the option to file concurrently. You must file the I-140 as a standalone petition without the I-485. 

Step 2: If your priority date is current, you should consider whether your I-140 is eligible for premium processing. Premium processing provides a decision within 15-45 days of filing, depending on the type of petition.

EB-1A petitions are eligible for 15-day premium processing, and EB-2 NIWs are eligible for 45-day premium processing. I-485s are not eligible for premium processing.

If you are filing with premium processing, you may want to file your I-140 as a standalone petition since you'll receive the final decision relatively quickly.

Once you know your I-140 is approved, you can start the I-485 process. This way, you will not waste time, money, and effort on the concurrent I-485 filing if the I-140 is unsuccessful. If you're filing an I-140 without premium processing, you may want to consider filing concurrently. 

Benefits and drawbacks of concurrently filing

Benefit #1: Concurrent filing may speed up the green card timeline by a few weeks/months

You may want to concurrently file to obtain the green card as quickly as possible. Under regular processing, the I-140 review timeline is sometimes over a year (learn more about processing times here).

The I-485 review timeline is approximately one additional year, and there is no premium processing option. Concurrent filing of the I-140 and I-485 may speed up the overall review timeline, particularly if you file your I-140 without premium processing. 

Benefit #2: Concurrently filing will allow you to get the green card-based advanced parole and EAD sooner

You may want to concurrently file if you need the advance parole and EAD. If you file the I-485 with the advance parole and EAD applications, you will receive your advance parole and EAD in about 4-6 months after I-485 filing. The advance parole and EAD will be issued based on the I-485 filing (even if your I-140 is still pending). 

Benefit #3: Concurrently filing will allow dependents to get their green card-based advance parole and EAD sooner.

You may want to concurrently file if your dependent(s) need the advance parole and/or EAD as a work or travel document. If you filed your dependent's I-485 with advance parole and EAD application, they will receive their advance parole and EAD in about 4-6 months after I-485 filing. Their advance parole and EAD will be issued, even if your I-140 is still pending.

Drawback #1: Concurrent filing may result in wasted time and money if the I-140 is denied

If your I-140 petition is denied, USCIS will stop processing the I-485 application because the denial of the I-140 means that you no longer have a basis for the green card. You will have wasted money, time, and effort on the I-485 application that will not be processed.  You may not want to concurrently file if you: 

• have a busy schedule and want the security of knowing the I-140 decision before spending time on the I-485 application; or
• don’t mind waiting for the green card. 

Drawback #2: Concurrent filing may result in upfront planning for international travel restrictions

Unless you are in H-1B or L-1 status, you must wait at least 90 days from your last entry into the US before the I-485 can be filed. Once your I-485 is filed, unless you are in H-1B or L-1 status, you must also remain in the US until the advance parole is issued. 

If you are in O-1 or TN status, concurrent filing means remaining in the US and not traveling internationally for at least nine months. This is because international travel and re-entry on O-1 after the I-485 is filed, without the advance parole, would risk abandonment of your green card application. If you are on O-1 or TN status, you may not want to concurrently file if you have planned international travel.

I-140 and I-485 Concurrent Filing Example Scenarios

Example 1

Akash was born in India. He is not married and wants to file an EB-2 NIW petition. He does not have a prior I-140 approval. According to the June 2022 Visa Bulletin, Akash would not have the option to concurrently file the I-140 and I-485 because his priority is not current. The EB-2 NIW would need to be prepared as a standalone petition, without the I-485.

Example 2

Marco was born in Italy and wants to file an EB-1A. He is currently in O-1 status. According to the June 2022 Visa Bulletin, Marco's priority date is current, and he can file the I-140 together with the I-485.

Regardless, Marco may elect to file the EB-1A as a standalone petition with premium processing, to avoid wasting time and effort on the I-485 if the I-140 is not approved. If the EB-1A is approved, he can then file the I-485 application. 

Note: Once he is ready to file the I-485, Marco must wait at least 90 days from his last entry into the US in O-1 before the I-485 can be filed. Marco must also remain in the US from I-485 filing until his advance parole is issued, which can take 4-6 months.

Example 3

Suzie was born in Canada. She is currently in O-1 status, and her spouse is in O-3 dependent status. Her spouse wants to start working in the US as soon as possible.

Suzie wants to file an EB-2 NIW, and she is current in the June 2022 Visa Bulletin. The EB-2 NIW is not yet eligible for premium processing. 

Because Suzie wants work authorization for her spouse as soon as possible, she may consider concurrently filing the EB-2 NIW with the I-485 for herself and her spouse. This will allow her spouse to receive the green card-based EAD approximately 4-6 months after the I-485s are filed. She understands that if the EB-2 NIW is denied, the I-485s will no longer be processed. 

Note: Suzie and her spouse must also wait at least 90 days from their last entry into the US in O-1/O-3 before the I-485s can be filed. Once the I-485s are filed, they must remain in the US until the APs are issued.

Figure out your next step with Deel Immigration

With your ability and your family's ability to travel internationally and work in the US impacted, deciding how to file your green card application is very personal.

However, you don't need to make that decision alone. Deel Immigration is dedicated to helping you make an informed decision. If you'd like to chat about your unique immigration situation schedule a free consultation.