As for other types of green card petitions, EB2 National Interest Waiver (NIW) allows concurrent or separate I-140 and I-485 filings. In this article, we will learn what these two options are and what advantages or disadvantages they may present so you can use the one that best suits your case.
The steps of the EB2 NIW process
Unlike other employment-based green card applications, EB2 NIW does not involve a labor certification. This step is also referred to as PERM. This is a similarity to the also popular EB-1A green card category. Because of this, only two major steps are part of the green card application: the I-140 petition and the I-485 or adjustment of status or consular processing step if applying from abroad.
Concurrent or separate EB2 NIW steps
Separate steps for I-140 and I-485
In this case, you would file your I-140 petition first, and once the United States Citizenship and Immigration Services (USCIS) delivers the approval you submit the I-485 petition for you (and your dependents if you have them). This is the route I followed in my own petition.
The advantages of filing separate I-140 and I-485 are:
- The financial risk is limited to the I-140 cost. Currently, USCIS charges “only” $700 per I-140. This is much less than the fee for adjustment of status (currently $1,140 plus biometrics fee of $85 per person between 13 and 79 years old). If you file the I-140 and I-485 separately, you are only investing a smaller portion of the total cost. If the case is denied for some reason, that is the money you lose. However, if you file concurrently, you are “risking” a much higher amount. This is because the USCIS fees are non-refundable. I have a separate article breaking down all the costs of this green card category. Note: Filing from abroad through consular processing is cheaper than adjustment of status.
- More than one I-140 filed. If you are trying for more than one green card category, you probably want to follow this route so you can see which one is successful before proceeding to the next step. This was my case, as I applied for EB2 NIW and EB1 at the same time. You can check out my YouTube video where I explain how I obtained approval for two I-140 petitions.
The disadvantages of filing separate I-140 and I-485 are:
- Filing separately can be slightly slower than filing concurrently. This is because USCIS starts doing things like background checks or fingerprint collections while processing the I-140 petition. Here is a separate article discussing processing time.
- The petitioner cannot request a Travel Document (advanced parole) or EAD cards for the dependents to work in the USA while waiting for the I-140 decision. In this case, because the adjustment of status has not been filed, one cannot request these documents that may be helpful for some. I have a separate article discussing traveling while the green card process is ongoing. One should be careful before leaving the US with a pending permanent residency petition.
Concurrent steps for I-140 and I-485
In this case, you would file both I-140 and I-485 petitions at the same time, or concurrently. You can only do this if there is a visa number available at the time of filing. In other words, you must check the visa bulletin to understand if you are “current”. This is based on your country of birth.
For example, lately, nationals from India and China have a considerable wait time before submitting the I-485 form (or proceeding with consular processing if abroad). If that is the case, concurrent or simultaneous filing cannot be done, and you would have to do the two steps separately, one after the other.
An exception to this is the cross-chargeability rule. This is a nice loophole to avoid long wait times if the spouse is from a country that is current in the visa bulletin. Then, the petitioner can use the spouse’s country of birth instead of theirs, and “skip the line”. If the spouse is current, then the I-140 and I-485 can be done concurrently. This is a nice solution for people to avoid backlogs!
The advantages of filing concurrent I-140 and I-485 are:
- Slightly shorter processing time. Even though filing concurrently does not save a ton of time (theoretically the I-140 processing time is unaffected), USCIS does send notices for biometrics while I-140 is under processing. Additionally, background checks can also happen in that period. This may result in slightly shorter overall timelines.
- EAD cards during the process. When filing concurrently, USCIS may provide EAD cards for the petitioner and dependents even before the I-140 is approved. This may be a positive aspect for many applicants and their families.
- Travel Document during the process. Similar to the EAD cards, USCIS may issue the Travel Documents for Advanced Parole earlier compared to separate filings.
- Avoid visa retrogression. Even though the visa bulletin should move forward, sometimes it does not. This is called visa retrogression. If there is a risk of visa retrogression, it may be a good idea to file concurrently to get ahead of the issue.
However, one must remember that if for any reason the petition fails, the EAD cards and Travel Documents will be lost. This is a reason why a petitioner and their family should carefully review their situation before traveling or using EAD cards for work. In some instances, consulting with an experienced attorney may help understand the situation better.
The disadvantages of filing concurrent I-140 and I-485 are:
- More financial risk. While the government fee for I-140 is about $700 (as of 2022) and is only one for the main petitioner, the adjustment of status fee (I-485) is $1,140. When doing concurrent filing, one must pay both parts of the process at the same time. Since these fees are non-refundable, if the case is not approved the financial loss will be more pronounced. Particularly considering that dependents have to file and pay a separate adjustment of status form. If a case is submitted again, the fees will have to be repaid fully.
What is the best route for you? Should you file concurrent I-140 and I-485 or do separate filings?
Well, as for most green card-related questions, this is a highly personal and case-by-case decision. In this article, we reviewed the pros and cons of each option, and the final decision will depend on your particular situation and appetite for financial risk. In certain cases, it will be wise to consult with an immigration attorney that can provide legal advice on the matter.