Understanding Priority Dates and Visa Bulletin

EB-2 NIW concurrent filing eligibility hinges entirely on understanding priority dates and visa bulletin. Your priority date is the date USCIS receives your I-140 petition. This establishes your place in line for visa numbers.

The Department of State publishes monthly visa bulletin showing immigrant visa availability. Two charts matter for employment-based cases. Final Action Dates determine when visa numbers are actually available for final adjudication. Dates for Filing show when applicants can file adjustment of status applications.

USCIS announces each month which chart to use. Check Adjustment of Status Filing Charts on USCIS website. December 2025 currently authorizes using Dates for Filing chart for all employment-based categories.

EB-2 NIW priority date current means your priority date falls before the cutoff date listed for your category and country of birth. If bulletin shows EB-2 for your country at June 2023 and your priority date is January 2023, you're current. If your priority date is September 2023, you're not current and must wait.

Country of birth matters significantly. Per-country caps limit each nation to 7 percent of annual visas. India and China face severe backlogs. "All other countries" often remain current or near-current. Check the row for your birth country specifically, not residence or citizenship.

The letter "C" instead of date means category is current. All priority dates are eligible regardless of when filed. This represents best-case scenario for concurrent filing.

"U" means unavailable. No visas are available for that category and country. You cannot file I-485 during unavailable periods. This typically occurs at fiscal year end in September when annual allocations exhaust.

Visa bulletin movements are unpredictable. Dates may advance several months, remain stagnant, or even retrogress backward. Monitor monthly for your category. Sign up for email notifications from State Department Visa Office.

Beyond Border monitors visa bulletins and alerts clients immediately when filing windows open for their countries and categories.

Deciding Between Concurrent and Sequential Filing

I-140 I-485 filing strategy requires weighing advantages and disadvantages of concurrent versus sequential filing. If your priority date is current, you must decide which approach makes sense.

Concurrent filing means submitting I-140 and I-485 together in same package. Sequential filing means filing I-140 first, waiting for approval, then filing I-485 separately. Both approaches work legally when priority date is current.

I-485 concurrent filing advantages include significant time savings. Sequential filing adds 6 to 12 months to overall timeline while waiting for I-140 approval before filing I-485. Concurrent filing starts both processes simultaneously.

Work authorization through EAD cards arrives faster with concurrent filing. You can file I-765 for EAD with concurrent I-485. EAD typically arrives 4 to 6 months after filing. This matters critically if you need work authorization quickly.

Advance parole for international travel becomes available sooner. I-131 filed with I-485 produces advance parole document allowing travel without abandoning application. This provides travel flexibility during pending process.

Job portability rights under AC21 activate 180 days after I-485 filing. Concurrent filing starts this clock immediately. You gain freedom changing employers after 180 days without affecting green card process.

The risk in concurrent filing involves wasted I-485 fees if I-140 denies. I-485 cannot approve without underlying approved I-140. If petition denies, you've spent $1,440 plus costs for nothing. I-485 fees are not refundable.

EB-2 NIW premium processing benefits influence timing decisions significantly. Since EB-2 NIW I-140 premium processing provides decisions within 45 calendar days, you can quickly know petition outcome before filing I-485.

Strong cases with solid evidence support concurrent filing. If you're confident I-140 will approve, concurrent filing saves time. Weaker cases or first-time filers might prefer sequential filing avoiding I-485 fee waste risk.

Current nonimmigrant status affects decisions. If you're on H-1B or L-1 with work authorization, immediate EAD is less critical. If on F-1 OPT ending soon or H-4 without work authorization, EAD urgency favors concurrent filing.

Family considerations matter. Spouse work authorization through I-485-based EAD might be critical reason choosing concurrent filing despite risks. Children aging out concerns could favor concurrent filing locking in ages sooner.

Beyond Border analyzes your specific situation and recommends optimal filing strategy balancing speed, risk, and personal circumstances.

Navigating Premium Processing Timing

EB-2 NIW premium processing benefits became available in 2023, dramatically changing filing strategies. For $2,805 additional fee, USCIS guarantees action within 45 calendar days.

Action means approval, denial, or Request for Evidence. RFE pauses the clock until you respond. After receiving response, new 45-day window starts. Still, premium processing removes primary uncertainty about petition outcome timing.

Premium processing applies only to I-140, not I-485. You cannot expedite adjustment of status processing. I-485 takes 8 to 24 months typically regardless of I-140 timing.

Filing I-140 with premium processing allows getting approval confirmation quickly before deciding on I-485. File I-140 alone with premium in January. Receive approval by March. Then file I-485 if priority date remains current. This sequential approach with premium processing reduces concurrent filing risks.

Premium processing works with concurrent filing too. File I-140 with premium processing and I-485 simultaneously. Get I-140 decision within 45 days. If approved, I-485 continues processing. If denied, I-485 processing stops but you've saved only 45 days compared to sequential filing.

Concurrent filing timing decisions when using premium processing depend on risk tolerance. Risk-averse applicants file I-140 with premium alone, wait for approval, then file I-485. Aggressive applicants file everything together accepting potential I-485 fee loss if denial occurs.

Premium processing doesn't change priority date. Your priority date remains the date USCIS receives I-140 whether using premium or regular processing. Premium only speeds adjudication decision, not visa availability.

Cost-benefit analysis matters. Premium processing costs $2,805. I-485 filing fees total approximately $1,440. If confident about I-140 approval, spending $2,805 on premium plus $1,440 on concurrent I-485 ($4,245 total) makes sense. If uncertain, spending $2,805 premium alone first then $1,440 I-485 after approval ($4,245 total sequential) equals same total cost but reduces risk.

The decision really comes down to whether you value the time savings from concurrent filing more than avoiding potential wasted I-485 fee. For most applicants with strong cases, concurrent filing with premium processing on I-140 represents optimal strategy.

Beyond Border helps evaluate whether premium processing makes sense for your timeline and budget.

Complying with 90-Day Rule and Entry Timing

Visa bulletin filing dates chart monitoring matters but so does your physical presence timing. The 90-day rule significantly impacts when you can file I-485 after entering United States.

If you enter US on nonimmigrant visa then file I-485 within 90 days, this creates presumption of preconceived intent. USCIS presumes you entered intending to adjust status, misrepresenting your nonimmigrant intent at entry. This can lead to fraud findings.

Wait minimum 90 days after last entry before filing I-485. Count carefully. If you entered October 1, you can safely file January 1 or later. Day 91 is earliest safe filing date.

This rule applies regardless of your nonimmigrant classification. O-1, H-1B, L-1, F-1, or any other status all subject to 90-day rule. The only exception is immediate relative categories not subject to this scrutiny.

Extended absences from US create situations where you might enter immediately before needing to file I-485 because priority date became current. Plan ahead. Don't schedule return to US requiring immediate I-485 filing. Allow 90-day buffer when possible.

Brief international trips during I-485 processing require advance parole. Once I-485 is pending, leaving US without advance parole abandons your application. Don't travel internationally after filing I-485 until receiving advance parole document unless maintaining valid H-1B or L-1 status allowing reentry.

The advance parole processing time currently runs 4 to 6 months. Plan accordingly. Don't file I-485 immediately before essential international travel. Either travel before filing or wait until advance parole approval before traveling.

Some nonimmigrant statuses provide dual intent explicitly. H-1B and L-1 allow immigrant intent without violating status. Concurrent filing while in these statuses creates fewer concerns about preconceived intent.

F-1 students face stricter scrutiny. Student status is explicitly non-dual intent. Filing I-485 while on F-1 OPT requires demonstrating circumstances changed after entry justifying adjustment application. Document what changed since entry prompting green card pursuit.

Beyond Border ensures compliance with 90-day rule and advises on timing considerations for international travel during processing.

Strategic Considerations for Different Countries

EB-2 NIW priority date current situations vary dramatically by country of birth. Indians face longest waits while most other countries remain current or near-current.

For India-born applicants, EB-2 category currently shows Final Action Date at April 2013 as of December 2025. If you file I-140 in 2025, you're looking at potentially 12 to 15 years wait for priority date becoming current. This drastically changes filing strategy.

Indian applicants should still file I-140 immediately establishing priority date. But don't expect concurrent filing opportunity for many years. Instead, focus on maintaining valid nonimmigrant status through H-1B extensions using approved I-140 beyond six-year limit.

Consider EB-1 upgrade path. Many EB-2 NIW qualified individuals also meet EB-1A extraordinary ability standards. File EB-1A petition and port earlier EB-2 priority date if EB-1A approves. EB-1 for India moves much faster than EB-2.

China-born applicants face moderate backlogs. EB-2 shows cutoff dates typically 2 to 4 years behind current date. Better than India but still requires patience. Monitor bulletin monthly for movement.

"All other countries" including UK, Canada, most European nations, Latin America, and Africa typically remain current or very recent in EB-2 category. These applicants often can file concurrently immediately or within months of I-140 filing.

Cross-chargeability rules allow using spouse's country of birth if different and not similarly backlogged. Indian husband married to British wife can use UK chargeability avoiding India backlog. Both must qualify for adjustment and apply together.

Children born in different country than parents can sometimes provide chargeability benefits. Child born in Canada while parents lived there temporarily may allow family using Canadian chargeability. Complex rules apply requiring attorney consultation.

Beyond Border analyzes country-specific timing and develops customized strategies for different nationality scenarios.‍

Frequently Asked Questions

Can I file I-485 with pending I-140 for EB-2 NIW? Yes, you can file I-485 concurrently with I-140 or while I-140 is pending as long as your priority date is current per visa bulletin at time of I-485 filing.

How long after I-140 approval can I file I-485? You can file I-485 immediately after I-140 approval if your priority date is current, or must wait until priority date becomes current per monthly visa bulletin before filing adjustment application.

Should I use premium processing for EB-2 NIW I-140? Premium processing makes sense for EB-2 NIW when you want fast certainty about petition approval, plan sequential filing to avoid I-485 fee waste risk, or need quick approval for H-1B extension purposes.

What happens if priority date retrogresses after concurrent filing? If priority date retrogresses after filing concurrent I-140 and I-485, USCIS can still adjudicate I-140 but must hold I-485 in pending status until priority date becomes current again.

Can I travel internationally after filing concurrent I-485? You can travel internationally after concurrent I-485 filing only after receiving advance parole document, which takes 4 to 6 months, unless maintaining valid H-1B or L-1 status permitting reentry.