As part of the U.S. Citizenship and Immigration Services' (USCIS) pending regulatory agenda, USCIS has recently indicated that they plan to publish a notice of proposed rule making ("NPRM") proposing to end the current practice of permitting concurrent filing of the USCIS Form I-140 Employer Petition for Immigrant Worker and the USCIS Form I-485 Application to Adjust to Permanent Resident Status. If this NPRM becomes a regulation, the USCIS would resume its former practice of requiring the I-485 application to be filed only after the underlying I-140 Petition has been approved. This rule would only meaningfully impact those who have priority dates current as of the date their I-140 petitions were filed. Those who do not have priority dates current as of the date of filing their I-140 immigrant petitions would rarely be eligible to file their I-485 applications until after their I-140 was approved in most cases. The group most likely to be impacted if this rule become effective are those foreign nationals qualifying for EB-2 or higher categories of employment-based immigration, and who are not born in India or China.

Please note that at this time, this rule has not been published. Concurrent filing of I-140 and I-485 continues to be available to individuals who meet the current eligibility requirements. USCIS has announced its intention to publish this NPRM in June 2008, with a 60 day period of comment to follow. An NPRM, unlike a Final Rule or Interim Final Rule, is not effective upon publication in the Federal Register, and it is possible that this regulation will never become final if, after public comment, USCIS does not move forward with the NPRM. In addition, while USCIS intends to publish this NPRM in June 2008, this is not mandatory, and it may be rescheduled to a later date if deemed necessary by USCIS or OMB.

Jackson & Hertogs will continue to monitor the status of the NPRM and provide updates to clients as information develops.

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