[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Rules and Regulations]
[Pages 49561-49564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19249]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / 
Rules and Regulations  

[[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.

-----------------------------------------------------------------------

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 [email protected]. 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

[[Page 49562]]

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

[[Page 49563]]

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.
* * * * *

[[Page 49564]]

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.

* * * * *

------------------------------------------------------------------------
                                Edition
          Form No.               date                  Title
------------------------------------------------------------------------
 
                  *        *        *        *        *
I-140.......................    08-30-01  Immigrant Petition for Alien
                                           Worker.
 
                  *        *        *        *        *
------------------------------------------------------------------------


    Dated: July 5, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-19249 Filed 7-30-02; 8:45 am]
BILLING CODE 4410-10-M