In recent months, favorable movement in the Visa Bulletin has created a renewed sense of urgency among immigrants and employers alike. Priority dates that had remained stagnant for extended periods have advanced, opening a window for many individuals to file for adjustment of status. As a result, a common and increasingly important question has emerged: whether it is advisable to concurrently file a Form I-140 immigrant petition together with a Form I-485 application for adjustment of status. This question arises most frequently among individuals who have changed employers and no longer have an approved I-140 petition associated with their current position, and who are now considering filing a new petition—often under the EB-2 National Interest Waiver or EB-1A Extraordinary Ability categories—while taking advantage of current visa availability.

At a surface level, concurrent filing appears efficient and appealing. It offers the possibility of moving multiple stages of the green card process forward simultaneously and provides access to interim benefits such as employment authorization and travel permission. However, immigration law is rarely as straightforward as it may initially appear, and concurrent filing is a strategy that must be approached with caution. While it is legally permissible and, in certain circumstances, entirely appropriate, it also carries risks that are often underestimated. In practice, the decision to concurrently file should not be driven by timing alone, but rather by a careful assessment of the underlying petition, the level of discretion involved in adjudication, and the potential consequences if the case does not succeed.

To properly understand the risks inherent in concurrent filing, it is important to appreciate the legal relationship between the I-140 and the I-485. The I-140 petition serves as the foundation of the employment-based green card process. It establishes that the individual qualifies for permanent residence under a specific immigrant category. The I-485 application, by contrast, is the mechanism through which the individual requests lawful permanent resident status. As a matter of law, USCIS cannot approve an I-485 unless the underlying I-140 petition has first been approved. While the agency may, and often does, adjudicate ancillary benefits such as employment authorization and advance parole travel permission before reaching a decision on the I-140, the ultimate success of the I-485 is entirely dependent on the approval of the immigrant petition.

This dependency is where the primary risk of concurrent filing lies. If the I-140 petition is denied, the I-485 application will almost invariably be denied as well, often in rapid succession. The consequences of such a denial are immediate and significant. The applicant’s employment authorization and travel authorization are terminated, the adjustment application is closed, and the filing fees paid to the government are not refunded. Depending on the individual’s prior immigration status, they may also find themselves without a lawful basis to remain in the United States. What initially appeared to be an efficient strategy can quickly become a costly and destabilizing outcome.

The degree of risk associated with concurrent filing varies substantially depending on the type of I-140 petition being submitted. Within the employment-based immigration framework, there is a critical distinction between discretionary petitions and those that are more formulaic in nature. Discretionary petitions, such as EB-1A Extraordinary Ability and EB-2 National Interest Waiver cases, require USCIS officers to engage in complex, multifactorial analyses that are inherently subjective. Determinations regarding whether an individual possesses extraordinary ability or whether their work is of national importance are not governed by rigid formulas. Instead, they depend on the totality of the evidence and the adjudicating officer’s interpretation of that evidence. As a result, outcomes in these categories can vary widely, and even well-prepared cases may be denied under current adjudicatory trends.

In contrast, PERM-based I-140 petitions and Schedule A cases operate within a far more structured and predictable framework. These cases typically turn on objective criteria, such as whether the employee meets the educational and experiential requirements specified in the labor certification and whether the employer has the financial ability to pay the offered wage. When these elements are clearly established and properly documented, the likelihood of approval is extremely high. While no case is entirely free from risk, these categories involve a level of predictability that is largely absent in discretionary filings.

This distinction has direct implications for concurrent filing strategy. In cases involving PERM-based or Schedule A petitions, concurrent filing is often appropriate and widely utilized. The relatively low level of adjudicative discretion means that the risk of denial is minimal when the case is properly prepared. In these circumstances, the benefits of concurrent filing—such as faster access to employment authorization and travel permission—can be realized without exposing the applicant to significant downside risk.

By contrast, in discretionary categories such as EB-1A and EB-2 NIW, concurrent filing introduces a level of risk that must be taken seriously. Because these petitions are subject to substantial discretion, the possibility of denial cannot be dismissed, even in strong cases. When a discretionary I-140 is filed concurrently with an I-485 and is subsequently denied, the consequences extend beyond the loss of filing fees. The individual may lose their ability to work, their authorization to travel, and in some cases, their lawful presence in the United States. In my experience, I have consulted with numerous individuals who pursued concurrent filing under these categories and found themselves in significantly more precarious positions following a denial, including scenarios in which their immigration options became severely limited or where they were placed at risk of removal proceedings.

The financial cost of concurrent filing is also a relevant consideration. The combined government filing fees for an I-140 petition, an I-485 application, and associated applications for employment authorization and travel permission can be substantial. When a case is denied, these fees are not recoverable. More importantly, however, is the strategic cost. A denial can disrupt an individual’s immigration trajectory, complicate future filings, and create gaps in lawful presence that may have long-term consequences. For employers, the impact can extend to workforce planning and operational continuity, particularly when key employees are affected.

It is also important to consider the broader context in which these decisions are made. Many individuals pursuing concurrent filing have waited years for their priority dates to become current. The desire to act quickly and take advantage of visa availability is entirely understandable. However, immigration strategy requires a long-term perspective. The objective is not merely to file at the earliest possible moment, but to secure a successful and durable outcome. Filing prematurely, without a high degree of confidence in the underlying petition, can ultimately result in greater delay and expense than a more measured approach would have entailed.

A prudent strategy, particularly in discretionary categories, is often to file the I-140 petition first, obtain approval, and then proceed with the I-485 once the foundational eligibility has been established. While this approach may require additional time, it significantly reduces the risk of cascading denials and provides a more stable pathway to permanent residence. It also allows for a more focused presentation of the I-140 petition, without the added pressure of concurrent filing timelines.

Ultimately, the decision to concurrently file a Form I-140 and Form I-485 must be made on a case-by-case basis, taking into account the nature of the petition, the strength of the evidence, and the individual’s broader immigration objectives. Concurrent filing is a powerful procedural tool, but like any tool, it must be used appropriately. When applied in the right context, it can streamline the process and provide meaningful interim benefits. When applied without sufficient consideration of the underlying risks, it can lead to outcomes that are both costly and difficult to reverse.

For immigrants and business owners navigating this process, the key is to look beyond the immediate opportunity presented by visa bulletin movement and to evaluate the full trajectory of the case. The distinction between short-term convenience and long-term success is critical. In discretionary categories in particular, patience and strategic planning are often the difference between a successful outcome and a preventable setback.

For more information, or for a detailed conversation the ins and outs of the Green Card process, please schedule a time to speak here.

By: Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.