EB-1 Application and Concurrent Filing

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Eb-1 Application and Concurrent Filing

EB-1 application (Employment Based Immigration – First Preference) is the visa category for United States employment-based visa. You may be eligible for an employment-based, first-preference visa if you are:

  • a foreign-born worker of extraordinary ability,
  • an outstanding professor or researcher, or
  • a certain multinational executive or manager.

Each occupational category has certain requirements that must be met.

Who Can File the EB-1 Application?

  • For foreign-born workers carrying ‘Extraordinary Ability’ may apply themselves by filing a Form I-140.
  • For ‘Outstanding Professors and Researchers’ and ‘Multinational Manager or Executive,’ their US employer must file a Form I-140. And, as part of the application process, employer must demonstrate a continuing ability to pay the offered wage as of the priority date.

What is concurrent filing?

Concurrent filing means filing simultaneously or in US immigration terms ‘Concurrent filing’ is when an adjustment of status application (Form I-485) is filed prior to the approval of the underlying immigrant visa petition.

Concurrent filing of I-140 with I-485:

People who are looking to immigrate to United States under EB-1 category visa must submit two different forms and get approved from USCIS to become permanent resident.

  1. Immigrant petition for foreign-born worker (Form I-140);
  2. Application to register permanent residence or adjust status (Form I-485).

Previously, a foreign-born worker who wanted to apply for permanent resident by filing the appropriate Form I-485 could not do so until he or she obtained approval of the underlying petition i.e. Form I-140. This procedure has resulted in an unnecessary delay for certain foreign-born workers. Interim rule announced on July 31, 2002, allows Form I-485 to be filed concurrently with Form I-140. Not only this, the rule allows the visa applicant to apply for Employment Authorization Document (EAD) using form I-765 (Application for employment authorization) and for Advance Parole(AP) using form I-131 (Application for travel document) concurrently with I-140 and I-485.

If the adjustment of status application (Form I-485) is filed after the immigrant visa petition (say Form I-140) but while the immigrant visa petition remains pending, it will be deemed to be concurrently filed. You should file receipt notice of I-140 along with the application of I-485 so that the petition and application can be matched up.

Benefits of Concurrent Filing of I-140 with I-485:

  • The first and foremost benefit of concurrent filing is that it allows the applicant and his family members to file simultaneously for EAD and AP. EAD allows you to work for any employer in the US without the employer having to file an H-1B or other employment-based non immigrant visa petition on your behalf. And, AP gives one the travel flexibility i.e. the person can leave the country and reenter without having need to obtain another visa.
  • Secondly, concurrent filling shields one from ‘accrual of unlawful presence’ in the country on an event of expiration and non renewal of their non-immigrant status. This is because once I-485 is filed and awaiting approval, USCIS considers the person to be in a period of authorized stay.
  • The third and obvious benefit of concurrent filing is that it could help in saving time (not always) and also effort that is required if filed separately.

What happen to the status of I-485 if underlying visa petition is rejected?

Supposedly, I-140 and I-485 are filed concurrently, and later USCIS has rejected I-140, then accompanying I-485 will not have any standing alone and will therefore be also rejected.

Processing Fees:

Form I-140 – The fee is $700.

Form I-485 – Biometrics – $85 and I-485 – $1140, costing a total of $1225.

*The fee is calculated at https://www.uscis.gov/feecalculator on May 1,2021 for an applicant of age 25years and visa category ’employment based’ for form I-140.

Procedure

A person must prepare all the forms which he intends to file concurrently (say I-140 and I-485) along with the required supporting documents to be filed together and applicable fee and mail these to USCIS. If the applicant wants to file I-131 and I-765 also with these, he should mail these along with them.

Eligibility for EB-1 Application Submission

USCIS check two things prior to approve concurrent application:

  • Which visa category you are applying in; for instance, EB-1, you are allowed to file concurrently with I-485.
    • Whether you have a current priority date. (This means that a visa number is available and you can file for adjustment of status.)

EB-1 Application Processing Time

Generally, it takes around 5-7 months for approving an I-140 petition. However, this number is just an estimate. It could take longer than that or may be less than that. However, it is true only if your priority date is current. If not, you need to wait extra to receive visa number.

For I-485 it can take anywhere around 5-9 months, not to mention, that this number is also an estimate. More or less time could be taken by USCIS.

Premium Processing in EB-1 Application

Premium processing is filed under I-907 by those who have urgency and cannot wait for normal process time. By paying the extra fee USCIS will expedite the application process to complete it generally within 15 Business days. The fee has been increases recently from $1440 to $2500 for all filing except those from petitioners filing Form I-129, requesting H-2B or R-1 nonimmigrant status. So Premium processing fee for I-140 would be $2500.

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