Foreign investors navigating the EB-5 program often face backlogs, retrogressions, or shifting policy guidelines that delay the adjustment of status process. One legal strategy available to eligible applicants is the transfer of the underlying basis for their Form I-485 adjustment of status application to another immigrant petition. This option, while powerful, requires exacting procedural compliance and carries significant strategic risk.
At Ahluwalia Law Offices, we closely monitor USCIS policies and visa bulletin changes to ensure our EB-5 clients remain on a compliant and optimal immigration pathway.
What Is a Transfer of Underlying Basis?
A transfer of underlying basis allows an applicant with a pending Form I-485 (Application to Register Permanent Residence or Adjust Status) to switch the immigrant petition supporting that application—typically moving from one employment-based category (e.g., EB-5) to another (e.g., EB-2 or EB-3), or vice versa.
This mechanism is especially relevant to EB-5 investors seeking to adapt to the evolving immigrant visa landscape, including set-aside visa categories introduced by the EB-5 Reform and Integrity Act (RIA).
USCIS Legal Framework and Eligibility
According to the USCIS Policy Manual (Volume 7, Part A, Chapter 8), a transfer request must meet the following criteria:
- Eligibility Must Be Maintained: The applicant must still be eligible under the original immigrant petition at the time of transfer.
- Timing Is Critical: The new petition must be active and designated before the initial petition is denied, revoked, or withdrawn.
- No Final Decision: Transfers are not allowed once USCIS has made a final decision on the adjustment application.
- Category Compatibility: The applicant must qualify under the new category and not face inadmissibility or adjustment bars.
- Visa Availability: An immigrant visa must be immediately available at the time of the transfer request—not the original petition filing date.
These rules also affect derivative beneficiaries. If the new petition doesn’t allow for dependents (e.g., an immediate relative petition), derivatives lose eligibility for adjustment.
How to Submit a Transfer Request
The procedure depends on the type of immigrant petition involved:
1. Transfer Between Approved I-140 Petitions
- Submit a written request to USCIS with a completed Form I-485 Supplement J.
- Address it to the USCIS Supplement J facility in Dallas, TX (USPS) or Lewisville, TX (FedEx/UPS).
2. Transfer with a New Petition
- Include a coversheet with the phrase:
“REQUEST FOR TRANSFER OF PENDING FORM I-485 [Receipt Number] TO ENCLOSED PETITION.” - Submit it along with the new petition to the correct USCIS filing location.
3. Other Transfer Requests
- Send a written, clearly labeled request to the USCIS office with jurisdiction over the I-485.
- Include copies of the adjustment application, the new petition, and supporting evidence.
What Happens After the Transfer?
- If granted, the I-485 application is permanently tied to the new petition.
- USCIS does not issue a formal receipt or status update confirming the transfer.
- In backlogged or retrogressed categories, this can lead to confusion, as online case status tools may still show delays—even after a successful transfer.
If denied or ignored, there is no appeal. If the original petition has become invalid, the I-485 may be denied—often without timely notice to the applicant.
Key Risks for EB-5 Investors
EB-5 transfers come with additional complications:
- No Receipt Confirmation: USCIS doesn’t acknowledge receipt or approval of the transfer request.
- Irrevocability: Once granted, the original petition can no longer support adjustment.
- Derivative Fallout: Spouses and children may lose eligibility if the new petition doesn’t permit derivatives.
- Discretionary Denial: Transfers outside EB-1/2/3 are not guaranteed—even when well-documented.
- RIA Implications: Filings under the RIA, including new Form I-526E applications, may raise eligibility and timing concerns.
Conclusion
For EB-5 applicants, a transfer of underlying basis can be a powerful tool—but only when executed with precision and strategic foresight. Due to USCIS’s lack of transparency and the irrevocable nature of transfer approvals, these requests must be planned with care and supported by full documentation.
At Ahluwalia Law Offices, our legal team ensures that EB-5 investors are fully informed and prepared to navigate the complexities of USCIS adjustment procedures. If you’re considering transferring your I-485 adjustment to a new immigrant petition, we recommend consulting with our attorneys to avoid costly missteps.
