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EB-3 to EB-2 INTERFILING OR TRANSFER OF PREFERENCE CATEGORIES OPTIONS FOR PENDING I-485 ADJUSTMENT OF STATUS APPLICANTS

As many of you might already be aware, that as per the recent November 2021 Visa Bulletin, the EB3 date of filing and final actions date retrogressed, resulting in inability for the Applicant’s to apply for their adjustment of status under the EB-3 category. However, on the other hand the EB-2 final action dates and the date of filing are moving forward, therefore, a lot of Applicant’s who retrogressed from EB-2 to EB-3 may be wondering if they have the option of interfiling or transfer of preference categories options for Pending I-485 adjustment of status applications.

While interfiling is technically an option, it does not always work. USCIS’s decision to grant or deny a transfer request is discretionary. As per response provided by the Nebraska Service Center in one of the liaison meetings (AILA), “As a practical matter, it is very difficult for the Service Center to accommodate the interfiling of an amended I-140 into a pending I-485 file.” Also, one should note that the Interfiling is not a creature of statute or regulations; rather, it was simply noted in an Immigration and Naturalization Service (INS) memo from 2000 and remains an ad hoc process.

Following Applicant’s qualify for a transfer of preference categories or the interfiling:

  1. There must be no break in the continuity of the applicant’s underlying eligibility to adjust from the date the I-485 application was filed until the date USCIS receives the transfer request. If a beneficiary has not maintained non-immigrant status, they may not be eligible to file a new I-485.
  2. I-485 applications based on petitions determined to have been filed fraudulently or with willful misrepresentation cannot be transferred.
  3. There must be no break in the continuity of the I-485 application, such as a withdrawal or denial for an unjustified failure to appear at scheduled interview or where a final decision has been made, even if USCIS subsequently reopens or reconsiders the final decision.
  4. The applicant must provide evidence of eligibility for the new immigrant category in support of the request to transfer, usually the IV petition approval or receipt notice.
  5. The priority date for the new immigrant visa category must be current on the date the transfer request is made. In general, the priority date of the replacement petition attaches to the pending adjustment application, except where applicable regulations permit retention of priority dates in certain employment-based 1st, 2nd, and 3rd preference cases. In the example of Mary at the beginning of this practice pointer, the new I-130 petition must be current when the transfer request is made, and the priority date of the new I-130 petition will be the priority date that controls the I-485 adjudication. Note that the USCIS guidance was written before USCIS accepted I-485 applications based on the “Dates for Filing” charts, so the interfile request can only be made when the Visa Bulletin final action date is current for the new IV petition.
  6. USCIS’s decision to grant or deny a transfer request is discretionary.
  7. Special considerations if 245(i). If the applicant initially filed under INA 245(i) and paid the additional fee, then the applicant need not pay that fee again as long as continuity of eligibility is maintained during the transfer. However, if the applicant’s initial adjustment application was not made under INA 245(i), and the applicant is seeking a transfer to a basis which qualifies under INA 245(i), then the applicant must pay the additional fee and file Supplement A to Form I-485.

In addition, one can try making a transfer of preference category or interfiling request through following ways:

  1. Call the USCIS Contact Center
  2. Make a request using “Ask Emma”
  3. Make a written request
  4. Have the I-485 Beneficiary make an inquiry with a congressional office
  5. Request the change in preference category at the adjustment of status interview

Please note, in lieu of interfiling, it may be more practical for the Applicant’s, albeit more expensive, to file a new I-485 application with the new IV petition. A new filing has the advantage of avoiding the challenges of coordinating an interfile request with USCIS and may be particularly useful if it is hard to predict which IV petition will be current in the coming months. Whether or not filing a new I-485 application is worth the additional expense and effort is only part of the analysis. It is also important to check that it is, in fact, an option.

We will regularly update the blog as soon as any new information is available.

Disclaimer

This article aims to provide new information concerning Interfiling or transfer of preference category. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

 

Disclaimer

This article aims to provide new information concerning humanitarian parole for afghan nationals. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

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