INS on Substituting New Petition Approval in Pending I-485
Posted Jul 31, 2000

In the June 22, 2000 issue of the MurthyBulletin article entitled, "INS Issues Guidance on Substituting Petitions in Pending I-485 Applications," we discussed the May 9, 2000 INS memorandum about procedures for substituting a new I-140 (employment-based petition) approval in a pending employment-based adjustment case. The memo also discussed the issue in the family-based context, involving the I-130 (family-based petition).

One statement in the INS memo was puzzling. That was the statement that "a priority date may not be transferred to another preference category." We indicated that such a rule was contrary to our previous understanding of INS policy and requirements.

We have now been informed that the INS Acting Branch Chief for Business and Trade Services, Efrem Hernandez, has indicated to the American Immigration Lawyers Association (AILA) that he was referring to a substitution between employment-based and family-based priority dates. Priority dates are, and always have been, transferable from one employment-based category to another in most instances. Now it is even permissible in an employment-based I-485 case to substitute a new I-140 in a different category, and in a family-based adjustment case to substitute a new I-130 in a different preference category. These options allow people to enjoy the benefit, for example, of faster processing times in the EB2 category in place of an EB3 approval, or the ability to work for a different employer while the I-485 application is pending.

The rules are generally straightforward in the employment-based context. The regulations clearly state that if a person is the beneficiary of multiple I-140 approvals, s/he is entitled to the earliest priority date. In the family-based context, the issues are more complex. Certain family-based categories automatically convert to other categories when a particular event, such as turning 21 or getting married, occurs. Also, some categories allow for "derivative beneficiaries" (dependents) while others do not. Substitution of I-130s is likely to raise many complications; so further INS guidance may be needed as to whether there are any limitations on family-based substitution. Strictly speaking, priority date transfer is a separate issue from substitution of approvals in pending I-485 cases. Still, the two issues interact in complex ways.

At any rate, we now know that while an I-140 cannot be substituted for an I-130 or vice versa, it is permissible to substitute petitions in different categories within either the family-based or the employment-based framework. The INS expects to issue the above clarification in a formal memo.