I am about to file my I-140, should I file the I-485 concurrently with it or wait to file the I-485 until the I-140 is approved?

imgresMany, many clients have asked us this question, and it is not an easy question to answer. Most importantly, the answer may be different depending on each persons exact situation. First, to explain a little bit, this question is looking at the fact that, under current USCIS rules, you can file the I-485 at the same time you file your I-140 and before you know if the I-140 is approved or not. While filing both applications together certainly saves time (both applications timelines run together), it can cause other issues. For example, if the I-140 is denied, then your I-485 would be denied. If you were relying on that application for your status, then you would be out of status from that point forward (most likely).

Generally, the factors we look at are:

  1. What is your current status? If you are on an H-1B, then there is little risk of filing the I-140 and I-485 together as you can maintain your H-1B status even after filing the I-485. Other statuses are trickier.
  2. When does your current status expire and what is the chance of your employer renewing it?
  3. Do you (or a spouse) need work authorization as soon as possible or can you wait?
  4. Do you need to travel in the near future (and need means need, not want).
  5. What category of I-140 is being filed?

These are just some of the questions we go through with our clients to help them make the determination on whether to file the I-140 and I-485 together, or to wait and see if the I-140 is approved first, then file the I-485.

Clearly, each individual will have to review the facts in their individual case and make a decision for themselves as to which process to use. You can, of course, call with any questions in this regard.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.


Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.

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