Concurrent filing of forms I-140 and I-485
On 31 July 2002, USCIS published an interim final rule that changed the procedure for filing for employment-based permanent residence. The rule permits concurrent filing of the University’s form I-140 for classification under the employment-based system and the individual’s I-485 application for permanent residence. Previously, the I-140 had to be approved before the I-485 could be filed. The rule was effective immediately. A visa number must be immediately available, and backlogs exist for certain countries. The State Department announces visa availability monthly on its web site at: Until the date in the Visa Bulletin moves up to or beyond the individual’s priority date (the date the Labor Certification, if required, or the I-140 was filed) the I-485 cannot be filed.
The benefits of following this procedure are that family members may apply for an Employment Authorization Document (EAD) on form I-765 so that they may work while the I-485 is pending. UW-Madison employees for whom we are applying for permanent residence also may apply for an EAD in order to be paid for activities outside of their primary position at the university, such as lecturing or consulting. However, using the EAD for outside employment cancels the employee’s H-1B status, so caution should be used. See the Adjustment of Status information for more details.
There could be some negative impact from following this concurrent filing procedure. If the I-140 is denied, then the I-485 is immediately denied and all USCIS filing fees and the cost of the medical exam(s) will be lost. Also, if the person’s nonimmigrant status has expired or if the person has used the EAD to work outside of UW-Madison, employment authorization will be terminated immediately and it might be necessary to leave the US quickly. UW might be able to process another status, but it could take time and the person would have to be outside the US while the processing takes place. Each applicant should evaluate the pros and cons and advise IFSS and the employing department which route is preferable, concurrent filing or waiting for the adjudication of the I-140 before filing the I-485. Due to the discretion involved in adjudicatingExtraordinary Ability and Outstanding Professor/Researcher cases, IFSS generally recommends that applicants under these categories wait to file the I-485 until USCIS has made a decision on the I-140, unless concurrent filing is absolutely necessary to maintain legal status while the I-140 is pending.
The two petitions can be filed together or separately. If filed separately, a copy of the I-140 receipt notice must accompany the I-485. The employing UW-Madison department, along with IFSS, will prepare the I-140 and all supporting documents. The beneficiary must prepare the I-485 and all associated forms and supporting documents. All filing fees, including the one for the I-140 are the responsibility of the employee, not the university. Please check the USCIS website for the most up to date address where these petitions are filed.
For filing the I-140:
For filing the I-485:
IFSS can give only very general information and assistance on adjustment of status. This application is the individual’s petition not the University’s. In most cases, faculty and staff can complete the forms on their own, but some may wish to consult with an immigration attorney, particularly if they have a complex situation. IFSS has a handout and information on our web site about how to locate and evaluate an immigration attorney, since we cannot make individual recommendations. It is important to keep in mind that under state law outside attorneys cannot represent state institutions, so an attorney could assist with the I-485 but not the I-140.
Premium Processing for I-140s
Effective 29 June 2009, premium processing service is once again available for most Form I-140 immigrant worker petitions in the first, second and third employment-based preference categories, with the exception of petitions in the EB-1 subcategory for multinational managers and executives and in the EB-2 category under the national interest waiver. Therefore, all categories filed by UW-Madison can benefit from premium processing.
UW-Madison employees who are eligible for this special provision should contact IFSS.
Benefits of Premium Processing
In exchange for an additional fee, USCIS promises a 15-calendar-day processing time, meaning the petitioner would receive an approval, a request for evidence or a notice of intent to deny. If the petition is not processed within 15 calendar days, USCIS will refund the premium processing fee and continue to process the request as part of the premium processing service. In addition to faster processing, we have access to a dedicated telephone number and an email address to check on the status of the case or ask questions.
Premium processing can be filed with new cases or with a copy of the receipt notice for cases that already have been filed. Form I-907 should be completed and submitted it to IFSS.
The beneficiary can pay the fee, unless doing so would drop the salary being offered below the prevailing wage for that occupation.
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Revision Date: 1/14/2019