In 1998 - 2000, the USCIS allowed a huge backlog of AOS applications to accumulate, resulting in lengthy processing times. However, within the past few years, the USCIS Service Centers have begun to attack the backlogs, and we are seeing approvals on applications filed approximately 6-15 months ago. It is important to note that processing times vary among the USCIS Service Centers. For current USCIS Service Center processing times, please refer to processing times on our website.
Unpredictable processing times. The primary disadvantage of AOS in the past has been lengthy and unpredictable processing times. As indicated above, USCIS has been giving a higher priority to processing AOS applications and the processing times are improving. However, AOS processing times continue to be longer than consular processing. The possibility of concurrent filing may actually serve to increase USCIS processing times. Longer processing times have the potential to prejudice the applications of dependent children. Under the terms of the Child Status Protection Act signed into law on August 6, 2002 however, dependents may be considered under 21 for the purpose of eligibility to apply for permanent residence. As a result, dependent children who were under the age of 21 when the application was initially submitted, but who become 21 years of age while the application is still pending, may or may not lose their eligibility for permanent resident status depending on the particular circumstance.
Changes in the USCIS regulation. At this time, we are working with an interim rule and without any interpretive or implementing memorandum from the USCIS. If an employee proceeds with concurrent filing, there is no guarantee that USCIS will not make changes to the interim rule as it currently stands, or make interpretations that we have not anticipated.
Risk of denial of the I-140. Filing the I-485 application enables the employee and dependents to concurrently file applications for Employment Authorization Document [EAD or I-765], and Advance Parole travel authorization [AP or I-131]. Despite these independent bases for work and travel authorization, we recommend that AOS applicants maintain their underlying nonimmigrant status, (at least until the I-140 is approved). This will mean additional fees for the employer if nonimmigrant visa extensions are required, as well as possible unnecessary usage of limited time in H/L status. For this reason, we currently recommend that if the I-140 is supported by a strong labor certification, the I-485 should be filed concurrently. However, we recommend that an I-140 supported by a labor certification that has risks such as a “substituted” employee, or an I-140 that is not supported by a labor certification [e.g., an Outstanding Researcher petition, or Extraordinary Ability petition] should be filed separately, and the I-485 not be filed until the I-140 is approved. We believe that this recommendation gives the employee the best chance of avoiding a situation where the I-140 is denied months after a concurrent filing, leaving the employee and the employer with an I-485 that has no legal basis. In that case, absent a valid non-immigrant status, the employee would be out-of-status and faced with the prospect of trying to reinstate status and employment authorization.
Possible inapplicability of AC21 "portability". It is unclear whether the AC21 "portability" rules will apply to concurrent filings. Therefore, it is unclear what action the USCIS would take if the I-140 was denied after the I-485 application was pending for more than 180 days. If USCIS decides that in such cases no portability is allowed, the AOS applicant would be required to ask the employer to begin the immigration process all over again, including a new non-immigrant visa petition (if eligible), a new labor certification (if required), a new I-140, etc. Given the limits on the amount of time one can remain in H or L status, the employee might have to leave the U.S. and complete the process from abroad. There is also the risk that a new employer would not be interested in supporting the immigration process at all.
