BCIS Memorandum Clarifies Regulations Concerning Concurrent Filing of Forms I-140 and I-485

A memorandum was recently released by the Bureau of Citizenship and Immigration Services (BCIS) in order to clarify adjudication in regards to processing Form I-485, the Application to Register Permanent Residence or Adjust Status, in cases where the beneficiary of an approved Form I-140, Petition for Immigrant Worker, proposes to change employers.

On July 31, 2002, the legacy Immigration and Naturalization Service (INS) released an interim rule allowing beneficiaries in certain circumstances to concurrently file Forms I-140 and I-485 when changing jobs. Previous to this rule, beneficiaries were required to first receive approval of their Form I-140 before filing Form I-485.

Immigration law specifically states that approval of Form I-140 will remain valid when an alien beneficiary changes jobs if the following two conditions are met:

· A Form I-485, on the basis of this I-140 petition, has been filed and has been unadjudicated for a period of 180 days or more, and
· The new job is in the same or similar field as the original job.

The concurrent filing process in no way effects this regulation. However, if the Form I-485 has been unadjudicated for a period less than 180 days during this change in employment, the Form I-140 will not continue to remain valid with respect to this new prospect of employment.

Similarly, if an approved Form I-140 is withdrawn by an employer on or after the Form I-485 has been pending for 180 days or more, the alien beneficiary will simply need to prove that the new position of employment is in the same or similar field as the original position.

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