Referred article from AILA Doc. No. 20022600:
Mary is an Outstanding Researcher. Her employer filed an I-140, Immigrant Petition for Alien Worker, in the EB-1 category and it was approved. Mary then filed an I-485, Application to Adjust Status, and all was well until her EB-1 visa category “retrogressed,” leaving her to wait for an indeterminate amount of time. In the meantime, Mary got married. Her spouse was recently granted lawful permanent residence. The priority date for the F-2A category is current! Does Mary have the option to transfer her pending I-485 application from the I-140 petition to the I-130 petition? Or will she have to file a brand-new application with new filing fees? Interestingly, the answer is that she may opt for either.
A similar scenario is increasingly common with employment-based immigrant petitions, particularly for Indian and Chinese nationals with EB-2 or EB-3 immigrant petitions. As we have continued to see somewhat unpredictable forward and backward movement in the EB-2 and EB-3 categories for India and China, it has at various times been more advantageous to be EB-3, and then EB-2, or vice versa. Many employers have therefore filed two I-140 immigrant petitions on behalf of an employee, one in the EB-2 category and another in the EB-3 category. However, transferring the preference category of a pending I-485 adjustment of status has been challenging a best, with no clear mechanism for making such a request.
For many years, someone in Mary’s situation has been able to request that the pending I-485 application be transferred to match up with an approved or pending I-130, Petition for Alien Relative, without filing a new I-485 application and paying the fees again. Similarly, someone with a pending I-485 adjustment of status application based on an EB-3 I-140 immigrant petition has been able to request that the I-485 be “interfiled” to instead be based on a separate EB-2 I-140 immigrant petition. The USCIS Policy Manual at Volume 7, Chapter 8, provides that an adjustment of status applicant whose application is based on one immigrant category may have the pending application considered under a different category. The underlying petition could be any type: I-360, I-130, I-526, or I-140, but most commonly it is an I-140 or I-130 petition. This practice pointer will refer to the underlying petition as an immigrant visa or IV petition. The major advantage of interfiling is that there is no need to re-pay any of the filing fees, or redo any of the application forms.
This practice pointer will discuss what applications may qualify for interfiling a new IV petition, the process for making the request, and other considerations to address in planning.
QUALIFYING FOR A TRANSFER OF PREFERENCE CATEGORIES
To qualify for a transfer of preference categories, the following factors should be considered:
- 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.
- I-485 applications based on petitions determined to have been filed fraudulently or with willful misrepresentation cannot be transferred.
- 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 the scheduled interview or where a final decision has been made, even if USCIS subsequently reopens or reconsiders the final decision.
- The applicant must provide evidence of eligibility for the new immigrant category in support of the request to transfer, which is usually the IV petition approval or receipt notice.
- 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 most likely can only be made when the Visa Bulletin finalaction date is current for the new IV petition.
- USCIS’s decision to grant or deny a transfer request is discretionary. The majority ofinterfiling involves transfers between the first three employment-based categories, and except for the caveats listed below, tend to be granted. Requests that involve jurisdiction constraints or difficulties, or that may greatly lengthen the processing time of the adjustment application, may result in the request being denied. In exercising their discretion, officers may consider the following:
- The reason(s) for the request
- The effects of additional processing time required to gather evidence to support theapplicant’s new claim
- The availability or unavailability of documentation to support the new claim
- The degree of difficulty in obtaining needed receipt files from other USCIS offices
- The degree of difficulty in determining the applicant’s continued eligibility fromthe first underlying petition or basis; and
- The extent of processing steps already taken on the adjustment application.
- Special considerations if 245(i). If the applicant initiallyfiled underINA section 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.
THE PROCESS FOR REQUESTING A TRANSFER OF PREFERENCE CATEGORIES
While interfiling historically has been an option, it has not always worked. Interfiling has been discussed at various times over the years during AILA liaison meetings with USCIS Service Centers. The response provided by the Nebraska Service Center (NSC) from a 2001 liaison meeting between AILA and the NSC acknowledged what many practitioners have experienced: “Interfiling is not a creature of statute or regulations; rather, it was simply noted in an Immigration and Naturalization Service (INS) memo from 2000and remains an ad hoc process. Fortunately, however, USCIS recently issued guidance on how to best make this request, at least for employment-based immigrant petitions. On January 21, 2022, USCIS released a new process and filing location for the submission of requests to transfer the underlying basis of a Form I-485 adjustment of status application to a different employment-based immigrant category based on another I-140 immigrant visa petition. The update was released on the USCIS webpage entitled “Green Card for Employment-Based Immigrants”. The USCIS Policy Manual section on the transfer of the underlying basis of an adjustment application remains available for general guidance at Volume 7, Part A, Chapter 8.
For Fiscal Year 2022, USCIS has created a new filing address that should be used to request a transfer of the underlying basis of employment-based Form I-485s. Through September 30, 2022, written requests to transfer should be submitted, with a completed I-485 Supplement J, (if required as described below), to the following address:
Attn: I-485 Supp J
U.S. Department of Homeland Security USCIS Western Forms Center
10 Application Way Montclair, CA 91763-1350
USCIS advised that applicants who have already submitted a transfer of underlying basis request to a USCIS office should not submit a new request to the new address. According to the agency, all requests already received at a USCIS office will be processed as usual by the USCIS office with jurisdiction over the pending Form I-485. In addition, although USCIS strongly encourages applicants to submit transfer requests to the above address, it has also said that any transfer requests that are received this fiscal year (through September 30, 2022) at a USCIS office will still be processed as usual by the USCIS office with jurisdiction over the pending Form I-485.
Form I-485, Supplement J
An important takeaway from the new guidance is that USCIS appears to believe that it requires an I-485 Supplement J to effectuate the transfer request in most cases. The guidance from USCIS explains:
- If you are requesting to transfer the underlying basis to a previously filed and approved Form I-140, you must submit I-485 Supplement J with your transfer request.
- If you are requesting to transfer the underlying basis to a Form I-140 that remains pending, you do not need to submit I-485 Supplement J.
USCIS will not provide a written response to transfer requests. However, USCIS will issue receipt notices for the Supplement J, so applicants will at least be able to confirm that the request has been received.
While the USCIS announcement does not include this detail, in practice it would be advisable for the request to include a clear statement requesting the transfer of underlying I-140 petitions, both as a cover letter to the filing and as an addendum to the Form I-485 Supplement J. It would also be helpful for practitioners to include:
- A Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative;
- A copy of the Receipt Notice for the pending I-485 Adjustment of Status Application; and
- A copy of the receipt/approval notices for the two underlying I-140s that are the basis ofthe transfer request.
This special address is only for use in transferring the basis of a pending I-485 from one employment-based petition to another employment-based petition. For other transfers, applicants should continue to submit the transfer request, in writing, to the USCIS office with jurisdiction over the pending application. For requests that do not qualify for the new process, consistent with the instructions in the USCIS Policy Manual, the request must be made in writing and sent to USCIS. The request should clearly explain the basis for the transfer and provide the receipt numbers for the pending I-485, the IV petition that is currently the basis of the I-485, and the IV petition that you want to be the new basis of the I-485. You should include copies of all three receipt notices. Send the request to the USCIS office where the pending I-485 is currently located, which may be one of the USCIS regional service centers, the National Benefits Center, or the local district office.
In 2008, the Texas Service Center recommended marking the interfile request “clearly and boldly ‘Send to A# [insert no.]’ ” to assist the mailroom with processing the request. Similar advice came from the Nebraska Service Center, “make a written request, big bold font and make clear what your intentions are. If you file the IV petition in a different service center, then make a written request to both Service Centers.”
You may receive a written response to this kind of inquiry as well. It is also possible that you will not receive any response. If you receive no response, you may wish to do an inquiry to ask if the agency has received your request using one of the methods outlined below.
FOLLOWING UP WITH USCIS ON THE STATUS OF A REQUEST TO TRANSFER THE PREFERENCE CATEGORY
Once the request is filed, USCIS should issue a receipt for the I-485 Supplement J and ultimately an approval notice for the Supplement J as well. However, this is just USCIS acknowledging the substance of the I-485 Supplement J, and does not mean that the transfer of preference category request has been approved. USCIS has not provided a specific means of tracking or inquiring about the transfer request. Moreover, it is important to understand that simply because the request has been submitted and the priority date is current does not mean that the I-485 adjustment of status application will immediately be approved. All of the normal underlying processing and security checks that are part of any adjustment of status adjudication still need to be completed. However, should follow-up be needed, practitioners may want to consider the following options:
1. Call the USCIS Contact Center
As with any other request, the first step is to make an inquiry through the USCIS Contact Center (formerly known as the Customer Service Center). You are permitted to make the request with the representative who initially takes the inquiry (Tier 1), but it may be necessary to escalate the request to a Tier 2 Officer. Within a few weeks of your inquiry, you should receive correspondence from USCIS on the status of your request. This correspondence may indicate that the change in preference categories is being implemented, that the request has been denied (such as due to retrogression of the priority date of the new petition), or that the request has been received and USCIS is continuing to process the application and will provide an update at a later time.
2. Make a Request Using “Ask Emma”
Some practitioners have reported success using the “Ask Emma” feature on the USCIS website for a variety of requests, including biometrics rescheduling and expedites, so it may be worthwhile to attempt to use the “Ask Emma” feature to request an update on a written request for a change in preference category for a pending I-485. Like contacting the USCIS Contact Center, you should get some kind of confirmation of the inquiry, but it is unclear how effective such a request will be.
3. Have the I-485 Beneficiary Make an Inquiry with a Congressional Office
Every member of Congress has a process for his or her office to assist with issues with a federal agency. The vast majority of these requests for assistance relate to USCIS, so the Congressional staffers are often well-versed with USCIS issues. As a result, it can be helpful for the I-485 beneficiary to inquire with the member of Congress in whose district they reside. This can be done by going to the website of the member of Congress and finding the link on that particular member’s website, generally along the lines of “assistance with a federal agency.” Some Congressional offices have an online form that needs to be completed, and some will accept phone inquiries. For privacy reasons, the I-485 beneficiary will generally need to sign a waiver to allow the office to make an inquiry on the beneficiary’s behalf. Once the inquiry is submitted, the Congressional office should get back to the I-485 beneficiary with whatever response is received from USCIS.
Note that the I-485 beneficiary should generally make this inquiry directly. It will be more effective than trying to inquire on your client’s behalf, as adding an attorney into the process can complicate it. You can certainly assist your client with completing the inquiry, but you should generally not try to make the inquiry directly on your client’s behalf. We recommend having the client add a line on the privacy release that “I give permission for you to discuss my case with my attorney, XXXX.” Since some congressional staffers will understand interfiling better than others, the attorney can be helpful in explaining the situation.
4. Request the Change in Preference Category at the Adjustment of Status Interview
If your client is scheduled for an adjustment of status interview in his/her current preference category, the request to change preference categories can be done directly at the adjustment of status interview. Similar to the written inquiry to USCIS, this can be done by providing the officer at the interview copies of the two I-140 approval notices and making a direct request in-person at the interview. To comply with the Policy Manual instructions, be sure to provide a written request to interfile. In many cases, the officer may be unfamiliar with the process of changing the preference category, so it can also be helpful to present documentation from the USCIS Policy Manual noted above to provide guidance.
It is unlikely that the officer will be able to make that switch directly at the interview, as sometimes the other I-140 has to be requested and/or the officer may have to take additional internal steps. However, this option can be the most direct way to accomplish the change in preference categories since you will have the opportunity for a live, face-to-face discussion.
WHAT ADDITIONAL CONSIDERATIONS SHOULD BE REVIEWED?
- In lieu of interfiling, some applicants choose 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. If a beneficiary has not maintained nonimmigrant status, they may not be eligible to file a new I-485. In addition, it is difficult to be certain what USCIS will do with two pending adjustment of status applications for the same individual, and unexpected denials or RFEs are a possibility.
- Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition should serve as the new basis.
- If a transfer request is granted, the original petition will no longer support the adjustment application. Keep this rule in mind if the priority dates are moving back and forth, such as China EB-2 and EB-3. You may end up “chasing your tail” if you interfile and the Visa Bulletin changes again. The USCIS Policy Manual states that “if the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time except for possible transfers between the first three employment-based categories.”
- Important note with regards to portability: USCIS has indicated that if an employment- based applicant requests to transfer the adjustment application to a different employment- based category, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request.13 While AILA disagrees with this interpretation by USCIS and has followed up with USCIS regarding this interpretation, this appears to be the current position that the agency is taking. As a result, until there is further guidance on this issue, there is additional risk with exercising AOS portability within 180 days after making a request to transfer to the basis of the I-485 application.
- If a National Interest Waiver (NIW) physician seeks to transfer his or her adjustment application to a new basis that does not involve employment in a medically underserved area or a Veterans Affairs (VA) facility, and the NIW physician was the beneficiary of a J- 1 waiver, USCIS may grant the transfer only if the applicant already fulfilled the required medical service for the INA 212(e) waiver or obtained a waiver on a different basis. Of importance, if the I-485 was filed during the 3-year service obligation USCIS generally will not allow the I-485 to be shifted to a different category. In other words, USCIS will evaluate whether the beneficiary was eligible to adjust in the new category on the date of filing the I-485 based on the PNIW.
- As a matter of discretion, an officer may deny a transfer request where the applicant would become subject to a bar of inadmissibility if the application were considered under the new category.
- To transfer a derivative beneficiary’s adjustment application, the principal adjustment applicant must maintain eligibility until the transfer request and the relationship between the principal and dependent must continue to exist. If the principal transfers his or her adjustment application to another basis that does not allow for derivatives, the derivative loses eligibility for adjustment of status at the time of the transfer.
- In the case of a derivative whose principal continues to maintain eligibility for adjustment and in which the relationship between the principal and derivative continues to exist, the derivative may request a transfer of the adjustment application from one basis to another and is not limited to transferring to another derivative category.
David Swaim & Associates, P.C.