RETURN TO HOMEPAGE
[Page
49561]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization
Service
8 CFR Parts 204, 245 and 299
[INS No. 2104-00]
RIN
1115-AGOO
Allowing in Certain Circumstances for the Filing of Form I-140
Visa Petition Concurrently With a Form I-485 Application
AGENCY:
Immigration and Naturalization Service, Justice.
ACTION: Interim rule
with request for
comments.
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SUMMARY:
The current Immigration and Naturalization Service (Service)
regulations
provide that an alien worker who wants to apply for
permanent resident by
filing the appropriate Form I-485, Application to
Register Permanent
Residence or Adjust Status, cannot do so until he or
she obtains approval of
the underlying petition, Form I-140, Immigrant
Petition for Alien Worker.
This procedure has resulted in an
unnecessary delay for certain alien
workers. This interim rule amends
the Service's regulations by allowing the
Form I-485 to be filed
concurrently when a visa is
immediately available, thereby improving
the efficiency of the process as
well as customer service. This interim
rule also provides that, if an
employment-based visa petition is
pending on July 31, 2002, the alien
beneficiary may obtain the benefits
of concurrent filing, but only if the
alien beneficiary files the Form
I-485, together with the applicable fee and
a copy of their Form I-797,
Notice of Action, establishing previous receipt
and acceptance by the
Service of the underlying Form I-140 visa petition.
Further, this
interim rule will allow the alien worker to apply for
employment
authorization using Form I-765, Application for Employment
Authorization, and for advance parole authorization using Form I-131,
Application for Travel Document, while the Form I-485 is
pending.
DATES: Effective date: This interim rule is effective July 31,
2002.
Comment date: Written comments must be submitted on
or before
September 30, 2002.
ADDRESSES: Please submit written
comments to the Director, Policy
Directives and Instructions Branch,
Immigration and Naturalization
Service, 425 I Street, NW., Room 4034,
Washington, DC 20536. To ensure
proper handling, please reference INS No.
2104-00 on your
correspondence. You may also submit comments electronically
to the
Service at insregs@usdoj.gov. When submitting comments
electronically
please include the INS No. 2104-00 in the subject box.
Comments are
available for public inspection at the above address by calling
(202)
514-3291 to arrange for an appointment.
FOR FURTHER INFORMATION
CONTACT: Morrie Berez, Assistant Director,
Business and Trade Services
Branch, Immigration and Naturalization
Service, 425 I Street NW., Room 3214,
Washington, DC 20536, telephone
(202) 353-8177.
SUPPLEMENTARY
INFORMATION:
Why Is the Service Issuing This
Rule?
This interim rule is necessary to improve both
efficiency and
customer service, and to support the Service's
long-established goals
for filing of petitions and applications via direct
mail. Current
regulations at Sec. 204.5(n), Sec. 245.1(g) and Sec.
245.2(a)(2) state
that an alien can only submit Form I-485 after the alien
has had his or
her underlying visa petition, Form I-140, approved, and when
an
immigrant visa is immediately available. Due to these requirements
there has been a delay from the time the Form I-140 is
filed with the
Service until the alien worker, for whom a
visa is otherwise
immediately available, can properly file Form I-485 with
the Service.
The most practical and efficient way to
eliminate this dalay is to
permit concurrent filing of Form I-485 together
with Form I-140 in
cases in which a visa is immediately available.
Concurrent filing
eliminates the dalay that takes place between approval of
Form I-140
and the subsequent filing of Form I-485. This interim rule
provides for
such concurrent filing.
Does This Interim Rule Change or
Amend the Substantive Eligibility
Requirements for the Visa Petition or
Permanent Residence Applications?
No, this interim
rule does not change the current substantive
requirements governing
eligibility for and adjudication of the Form I-
140 nor for the Form
I-485.
Who Is Eligible To File Forms I-140 and I-485
Concurrently?
Forms I-140 and I-485 may be
filed concurrently only when an
immigrant visa number is
immediately available. This interim rule does
not change the existing
requirement that a visa number must be
immediately available before an alien
can apply for permanent resident
status. This interim rule simply applies to
aliens who are classifiable
under sections 203(b)(1), (2), and (3), of the
Immigration and
Nationality Act, allowing them to file the Forms I-140 and
I-485 at the
same time, but only when a visa is immediately
available.
If a Form I-140 Visa Petition Previously
Filed for an Alien Worker Is
Still Pending With the Service
on or After the Date This Rule Is
Published, and a Visa Number Is
Immediately Available, Can the Alien
File Form
I-485?
Yes, upon issuance of this rule, an alien whose
Form I-140 visa
petition is pending with the Service may file Form I-485,
together with
associated forms and fees, with the Service office at which
the visa
petition was filed. When filing Form I-485, the
alien will be required
to attach a copy of the Form I-797, Notice of Action,
establishing
previous receipt and acceptance by the Service of the
underlying Form
I-140 visa petition. When an immigrant visa is immediately
available,
Form I-485 may be filed either concurrently with
the Form I-140 or
anytime thereafter.
If a Visa Number Was Not
Immediately Available at the Time a Form I-140
Visa Petition Was
Filed, and Then a Visa Number Becomes Available, Can
the
Alien File Form I-485?
Yes, upon issuance of this
rule, if a visa number becomes
immediately available since filing of the
underlying Form I-140, the
alien may tehn file
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Form I-485, together with associated forms and appropriate fees,
with
the Service office at which the visa petition was
filed. When filing
Form I-485, the alien will be required
to attach a copy of the Form I-
797, Notice of Action, establishing previous
receipt and acceptance by
the Service of the underlying Form I-140 visa
petition.
If the Alien Is in Deportation or Removal Proceedings, Does the
Alien
File the Form I-485 Under This Section With the Service or With the
Immigration Court or Board of Immigration Appeals
(Board)?
For aliens in deportation or removal
proceedings, 8 CFR 245.2(a)(2)
establishes ``applications shall be made and
considered only in those
proceedings.'' If the alien is before the
Immigration Court, the Form
I-485, associated documents and proof of payment
of the fees must be
filed with the Immigration Court. If
the alien has an appeal pending
before the Board, the Form I-485, associated
documents and proof of
payment of the fees must be filed
with the Board. The fees must first
be paid to, and receipt obtained from,
the Service.
If the Alien Files the Form I-485 and Associated Documents
With the
Immigration Court or the Board After Paying the Proper Fees to the
Service, Does Such a Filing Stop or Stay Deportation or Removal
Proceedings?
No. The filing of an adjustment
action where the underlying visa
petition is not current does not by itself
stop or stay (suspend) the
proceedings. The Board will only accept the
filing of the Form I-485
for placement into the Record of Proceedings (ROP).
This filing is not
a motion to reopen, motion to reconsider, or any other
motion beyond a
request to include the adjustment application in the file.
Furthermore,
accepting the application and placing it in the ROP is not a
reopening
or reconsidering of the case, nor any other action pertaining to
the
case. If the underlying petition for the alien is approved and a visa
is or becomes immediately available, the alien must affirmatively move
the Immigration Court or the Board of Immigration Appeals to consider
the application for adjudication, or remand the application to the
Service for adjudication if the Service concurs in the
remand.
Besides Eliminating the Delay for Filing Form I-485, How Else
Will
These Regulatory Amendments Benefit Aliens?
These amendments will allow the Service to issue Employment
Authorization
Documentation (EAD) and advance parole authorization
(which allows the alien
to travel outside of the United States
temporarily while his or her Form
I-485 is pending with the Service) to
certain alien workers within
substantially less time than at present.
In being able to apply for
employment authorization and advance parole,
the alien may avoid the adverse
consequences of accrual of unlawful
presence. To achieve the desired
efficiency improvement in the
Service's processing, only aliens who have
filed a Form I-140 for which
a visa number is immediately
available and Form I-485 will qualify for
these benefits. Therefore, as a
result of this interim rule, an
eligible beneficiary of a Form I-140 visa
petition for whom a visa is
immediately available will no longer need to
wait for approval of the
underlying Form I-140 before eligible to apply for
these benefits.
How Does This Interim Rule Affect the September 6, 2000,
Interim Rule
Relating to National Interest Job Offer Waivers for
Physicians?
On September 6, 2000, the Service
published in the Federal Register
at 64 FR 53889 an interim rule relating to
national interest job offer
waivers for physicians. Under 8 CFR 245.18(f) of
that interim rule,
when a physician files for adjustment of status the
Service is required
to give a physician notice of specific requirements
relating to the
adjustment of the physician's status. This interim rule
concerning
concurrent filing of Forms I-140 and I-485 requires one
conforming
amendment to 8 CFR 245.18(f). If the physician
filed the Form I-485
concurrently with the Form I-140, the
Service will give the required
notice upon approval of the Form I-140,
rather than upon receipt of the
Form I-485. If the physician waits to
subsequently file the Form I-485
while the previously filed
Form I-140 is still pending, then the
Service will give the required notice
upon approval of the Form I-140.
If the physician files the Form I-485 after
the Form I-140 is approved,
then the Service will give the required notice
upon receipt of the Form
I-485.
Good Cause
Exception
The Service's implementation of this rule as
an interim rule, with
provision for post-promulgation public comment, is
based upon the
``good cause'' exception found at 5 U.S.C. 553(b)(B) and
(d)(1). This
rule relieves the current restriction that bars the filing of
an
application for permanent residence (Form I-485) until after the
underlying visa petition (Form I-140) has been approved. This rule is
intended to provide efficiency and fairness to applicants. It is
therefore impractical, unnecessary, and contrary to the public interest
to publish this rule with the prior notice and comment period normally
required under 5 U.S.C. 553(b).
Regulatory Flexibility
Act
The Commissioner of the Immigration and
Naturalization Service, in
accordance with 5 U.S.C. 605(b), has reviewed
this interim rule and, by
approving it, certifies that this rule does not
have a significant
economic impact on a substantial number of small
entities. This rule is
intended to expedite alien worker authorization while
the alien's
permanent status application (Form I-485) is pending. This rule
affects
individual aliens, not small entities as that term is defined in 5
U.S.C. 601(6).
Unfunded Mandates Reform Act of
1995
This rule will not result in the expenditure by
State, local and
tribal governments, in the aggregate, or by the private
sector, of $100
million or more in any one-year, and it will not
significantly or
uniquely affect small governments. Therefore, no actions
were deemed
necessary under the provisions of the Unfunded Mandates Reform
Act of
1995.
Small Business Regulatory Enforcement Fairness Act of
1996
This rule is not a major rule as defined by
section 804 of the
Small Business Regulatory Enforcement Act of 1996. This
rule will not
result in an annual effect on the economy of $100 million or
more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the
ability of United States-based companies to compete with foreign-
based
companies in domestic and export markets.
Executive Order
12866
This rule is not considered by the Department of
Justice,
Immigration and Naturalization Service, to be ``significant
regulatory
action'' under Executive Order 12866, section 3(f), Regulatory
Planning
and Review, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
Executive Order
13132
This rule will not have substantial direct
effects on the States,
on the relationship between the National Government
and the States, or
on the
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distribution of power
and responsibilities among the various levels of
government. Therefore, in
accordance with section 6 of Executive Order
13132, it is determined that
this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism
summary impact statement.
Executive Order
12988 Civil Justice Reform
This rule meets the
applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive
Order 12988.
Paperwork Reduction Act
The
information collection requirement (Form I-140) contained in
this rule has
been approved for use by the Office of Management and
Budget (OMB) under the
Paperwork Reduction Act. The OMB control number
for this information
collection is contain in 8 CFR 299.5, Display of
control
numbers.
List of Subjects
8 CFR Part 204
Administrative practice and Procedures, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part
299
Immigration, Reporting and recordkeeping
requirements.
Accordingly, chapter I of title 8 of the
Code of Federal
Regulations is amended as follows:
PART
204--IMMIGRANT PETITIONS
1. The authority citation for
part 204 continues to read as
follows:
Authority:
8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255, 1641; 8 CFR part
2.
2. Section 204.5 is amended by revising
paragraph (n)(1) to read as
follows:
Sec. 204.5 Petitions
for employment-based immigrants.
* * * * *
(n) * *
*
(1) Approval. An approved employment-based petition will
be
forwarded to the National Visa Center of the Department of State if the
beneficiary resides outside of the United States. If the Form I-140
petition indicates that the alien has filed or will file an
application
for adjustment to permanent residence in the United States (Form
I-485)
the approved visa petition (Form I-140), will be retained by the
Service for consideration with the application for permanent residence
(Form I-485). If a visa is available, and Form I-485 has not been
filed, the alien will be instructed on the Form I-797,
Notice of
Action, (mailed out upon approval of the Form I-140 petition) to
file
the Form I-485.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON
ADMITTED FOR
PERMANENT RESIDENCE
3. The authority
citation for part 245 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182,
1255; sec. 202, Pub. L.
105-100, 111 Stat. 2160, 2193; sec. 902. Pub. L.
105-277, 112 Stat.
2681; 8 CFR part 2.
4.
Section 245.1 is amended by revising the third sentence in
paragraph (g)(1)
to read as follows:
Sec. 245.1 Eligibility.
* * * *
*
(g) * * *
(1) * * * An immigrant
visa is considered available for accepting
and processing the application
Form I-485 is the preference category
applicant has a priority date on the
waiting list which is earlier than
the date shown in the Bulletin (or the
Bulletin shows that numbers for
visa applicants in his or her category are
current). * * *
* * * * *
5. Section 245.2 is amended
by revising paragraph (a)(2)(i), to
read as follows:
Sec.
245. Application.
(a) * *
*
(2) * * *
(i) Under section 245.
(A) An immigrant visa must be immediately
available in order for an alien to
properly file an adjustment
application under section 245 of the Act See
Sec. 245.1(g)(1) to
determine whether an immigrant visa is immediately
available.
(B) If, at the time of filing, approval of a
visa petition filed
for classification under section
201(b)(2)(A)(i), section 203(a) or
section 203(b)(1), (2) or (3) of the Act
would make a visa immediately
available to the alien beneficiary, the alien
beneficiary's adjustment
application will be considered properly
filed whether submitted
concurrently with or subsequent to
the visa petition, provided that it
meets the filing requirements contained
in parts 103 and 245. For any
other classification, the alien beneficiary
may file the adjustment
application only after the Service has approved the
visa petition.
(C) A visa petition and an adjustment
application are concurrently
filed only
if:
(1) The visa petitioner and adjustment applicant each
file their
respective form at the same time, bundled together within a
single
mailer or delivery packet, with the proper filing fees on the same
day
and at the same Service office, or;
(2) the visa
petitioner filed the visa petition, for which a visa
number
has become immediately available, on, before or after July 31,
2002, and the
adjustment applicant files the adjustment application,
together with the
proper filing fee and a copy of the Form I-797,
Notice of Action,
establishing the receipt and acceptance by the
Service of the underlying
Form I-140 visa petition, at the same Service
office at which the visa
petitioner filed the visa petition, or;
(3) The visa petitioner filed the visa petition, for which a
visa
number has become immediately available, on, before, or after July 31,
2002, and the adjustment applicant files the adjustment application,
together with proof of payment of the filing fee with the Service and a
copy of the Form I-797 Notice of Action establishing the receipt and
acceptance by the Service of the underlying Form I-140 visa petition,
with the Immigration Court or the Board of Immigration Appeals when
jurisdiction lies under paragraph (a)(1) of this section.
* * * *
*
6. Section 245.18 is amended by revising paragraph
(f) introductory
text to read as follows:
Sec. 245.18 How
can physicians (with approved Forms I-140) that are
serving in medically
underserved areas or at a Veterans Affairs
facility adjust status?
*
* * * *
(f) Will the Service provide information to the
physician about
evidence and supplemental filings? The Service shall provide
the
physician with the information and the projected timetables for
completing the adjustment process, as described in this paragraph. If
the physician either files the Form I-485 concurrently with or waits to
subsequently file the Form I-485 while the previously filed
Form I-140
is still pending, then the Service will given this information
upon
approval of the Form I-140. If the physician does not file the
adjustment application until after approval of the Form I-140 visa
petition, the Service shall provide this information upon receipt of
the
Form I-485 adjustment application.
* * * * *
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PART 299--IMMIGRATION FORMS
7. The
authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR
part 2.
8. Section 299.1 is amended in the table
by revising the entry for
Form I-140, to read as follows:
Sec.
299.1 Prescribed forms.
* * * *
*
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Edition
Form
No.
date
Title
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*
*
*
*
*
I-140....................... 08-30-01 Immigrant
Petition for
Alien
Worker.
*
*
*
*
*
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Dated: July 5, 2002.
James W. Ziglar,
Commissioner, Immigration and
Naturalization Service.
[FR Doc. 02-19249
Filed 7-30-02; 8:45 am]
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