I and my wife have our employers sponsoring us greencards under EB-2/3 category. They are preparing our PERM and i-140 applications. We also have our i-526 application under process. With the new reauthorization rules, it looks like we are eligible to start filing the change of status i-485 since we have already filed i526 back in 2018, even though it is not approved. Can both these applications (i-140 by employer and i-485 for EB5 based eligibility) be applied in parallel? Does one hurt another? What would be the best way to safe-guard the i140 as well. Since EB5 rules and regulations are fickle.
The rules indicate that you can file both and USCIS has recently provided guidance on how one can switch the underlying basis to adjust from one category to the other. It is important to have an advisor who can guide you on both options because they do not cancel each other. We have cases where we have successfully pursued both options, but at the end, you have to choose one.
EB-2 or EB-3 I-140 cannot be filed until you have a certified underlying PERM from the US DOL. You may file I-485 based on I-526 petition once the new law is in effect. When your PERM is certified, you will then file I-140 and request to switch the pending I-485 to the approved I-140 assuming the underlying immigrant visa category will be current. I-140 will give you a permanent green card whereas I-526 will give you a conditional green card and you will need to remove conditions down the road by filing I-829.
You cannot file the I-140 until a ERM is approved but you can file the I-485 to match up with the I-526 once the new re-authorization laws are in effect. Once the PERM is approved, you may file the I-140 as well and if the priority date is current for that category, you could switch the I-485 to that case.
