AC21 and Interfiling Rules Used to Obtain I-485 Approval21 Jan 2016
There are two strategies commonly used by those with pending adjustment-of-status (form I-485) applications to make job changes without disrupting their respective cases. One option is to argue that the move is to a same or similar job, thus qualifying for portability purposes under the American Competitiveness in the Twenty First Century Act (AC21). The other strategy is known as interfiling. Recently, the Murthy Law Firm assisted a client in obtaining an I-485 approval by applying both AC21 and interfiling strategies.
Interfiling of Underlying I-140 Petition
Interfiling, also known as conversion, is a procedure for asking the U.S. Citizenship and Immigration Services (USCIS) to take the I-140 employer petition upon which a pending I-485 is based, and replace it with an approved I-140 petition from either a new employer or the same employer for a new position. Typically, this strategy is used to “upgrade” from an employment-based, third preference (EB3) petition to an employment-based, second preference (EB2) petition, while retaining the earlier EB3 priority date. For more information about interfiling, see the MurthyDotCom NewsBrief, Interfiling New Immigrant Petition into Pending I-485 Case (1 of 2) (26.July.2013).
Background of Case – AC21 and EB2 to EB3 Upgrade
Before contacting the Murthy Law Firm, the individual filed an I-485 application based on Company A’s approved I-140 for an EB3 position. After more than 180 days had passed, he moved to Company B pursuant to AC21. Company B then went on to initiate a new EB2 case for this foreign worker, and requested that the old priority date be retained for the new I-140.
Problem: Revocation Notice on Initial I-140 Petition
Once Company B’s I-140 petition was approved, the beneficiary requested interfiling of the EB2 I-140 into his pending I-485. In the interim, however, the USCIS issued a notice of intent to revoke (NOIR) on Company A’s I-140 petition. This NOIR was sent only to Company A, which, by that time, had gone out of business. So, no response to the NOIR was submitted to the USCIS, resulting in the revocation of that initial I-140. This put the applicant’s pending I-485 in jeopardy, which prompted him to contact the Murthy Law Firm.
Murthy’s Success: AC21 and Interfiling Later Approved I-140
In order to preserve our client’s I-485 application, we argued that the pending I-485 was valid based on both AC21 and the rules related to interfilings. First, we provided a detailed analysis of the portability provision of AC21 and demonstrated how, when applied to the specific facts in our client’s case, it served to preserve his pending I-485. We further demonstrated that the USCIS had misapplied the law in revoking Company A’s I-140 for cause. With this established, we went on to explain to the USCIS that, because the I-485 remained valid pursuant to AC21, our client was also eligible to request the interfiling of his EB2 petition. Ultimately, the USCIS agreed with our legal arguments and approved our client’s long-pending I-485.
The Murthy Law Firm is thrilled to have been able to play a part in helping this client achieve his American dream. Anyone with questions about AC21 portability, interfiling requests, or other issues related the process of becoming a lawful permanent resident is welcome to schedule a consultation with a Murthy Law Firm attorney.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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