Interfiling New Immigrant Petition into Pending I-485 Case (1 of 2)14 Oct 2020
Some of the options for making changes to the basis of a permanent resident (“green card”) case after reaching the adjustment-of-status (I-485) stage are addressed here for the benefit of MurthyDotCom readers. Specifically discussed is interfiling, also referred to by the USCIS as “Transfer of Underlying Basis,” utilized when an I-485 applicant wants to change the underlying immigrant petition that will serve as the basis of the I-485 approval. Also provided is guidance as to when this strategy can be beneficial, as well as the eligibility criteria for interfiling a new or different immigrant petition into a pending I-485 application.
The concept of interfiling is fairly simple. It allows one to replace the underlying immigrant petition with another immigrant petition during the pendency of one’s I-485 application. An immigrant petition is, most commonly, the I-140 employer-sponsored petition or the I-130 family-based petition. Thus, in an employment-based case, if one visualizes the I-140 petition as a pillar supporting the I-485, interfiling is simply switching one supporting pillar with a different pillar. As explained below, this procedure can be used in a variety of situations involving pending I-485 cases.
It should be noted that the concept of interfiling is not to be confused with pure priority date retention. Priority date retention involves keeping or assigning the priority date from an earlier-approved I-140 to a later-filed I-140 petition. While interfiling might also be used with priority date retention, they are two separate procedures, not always used together. Priority date retention is a process explained in numerous MurthyDotCom articles easily accessible by searching our site for priority date and retention.
USCIS Refers to it as “Transfer of Underlying Basis”
The U.S. Citizenship and Immigration Services (USCIS) memoranda and the USCIS Policy Manual (PM) use the phrase “Transfer of Underlying Basis” for what most foreign nationals and immigration law practitioners refer to as interfiling. The underlying basis for a green card case may be converted in a number of situations.
Examples of Interfiling / Transfer of Underlying Basis
One common example familiar to many MurthyDotCom readers is the EB3 to EB2 “upgrade” option, as explained in the NewsBrief, EB2 “Upgrades” – Priority Date Retention and Online Degrees (11.May.2012).
The interfiling option can also be used in what are less familiar scenarios. For example, it is available sometimes when an individual has filed an I-485 application based upon an employer’s I-140 immigrant petition, but that individual wishes to change the underlying I-485 basis to an approved family-based petition. This may be beneficial to some who are eligible to file under the family-based, second-preference “A” (FB2A) category, which has remained current for some time.
Possible scenarios may even include switching the underlying basis from one spouse to the other, but it is important to understand the general criteria that govern all such interfiling or conversion requests. It is also important to understand, as explained below, that interfiling is a creation of Legacy INS and the USCIS, and its use therefore is dependent upon policy considerations. The acceptance of such cases has evolved over time and is largely discretionary.
Eligibility Criteria for Interfiling / Transfer of Underlying Basis
The criteria for interfiling are not written in the law or any regulation. Interfiling, or transfer of underlying basis, is purely an administratively created procedure and is described only in guidance for USCIS adjudicators – specifically, the PM and USCIS memoranda. As such, the decision to grant any particular type of interfiling request is discretionary, and not guaranteed. If all the conditions set by the USCIS are satisfied, however, there is a good chance that the interfiling request will be approved, as this serves USCIS’s interests of efficiency. It also facilitates the applicant’s goal of obtaining permanent residence by saving time, effort, and multiple filing fees.
The PM requires that the request be made in writing. There is, however, no specific form or format for this request. Additionally, there are cases in which the USCIS will initiate a conversion without a written request.
I-485 Applicant Must be Continuously Eligible for Approval
The applicant should have no breaks in continued eligibility and pendency of the I-485 application. For this reason, it is often necessary to be proactive in interfiling requests. If the interfiling or conversion request is made after the applicant’s previously held I-485 eligibility ended, the USCIS can no longer consider an interfiling or transfer of underlying basis request. For example, if one previously filed an I-485 based upon an employment-based, third preference (EB3) I-140 petition in 2007, that individual may later consider the option of upgrading to EB2. In that event, an employer would file a new PERM labor certification and I-140 petition in the EB2 category. Once the EB2 I-140 is approved, an interfiling request can be made. At all times, one must either still have the EB3 job offer or a job offer that meets the portability requirements under the American Competitiveness in the 21st Century Act (AC21).
In the above example, the individual has continuous, uninterrupted eligibility through the EB3 case. Continuous eligibility essentially means always having a good case. There was nothing wrong with the EB3 case described here other than the backlog in visa number availability.
Priority Date and Other Considerations
The interfiling request should be based on a priority date that is current, although many such requests are initiated prior to that point. Regardless, no action is taken by the USCIS unless the priority date under the new basis case is current. Additionally, it is required that the adjustment applicant not be subject to any bar on admission based on the new immigrant petition, even if s/he was exempt from these inadmissibility bars at the time of the initial filing.
There can be many benefits derived from the ability to use interfiling / transfer of underlying basis in an I-485 case. In part 2 of this article, we will explain how such requests are made, and will provide examples of some of the less common interfiling scenarios. The interfiling option can be quite helpful as a way to obtain approval of a pending I-485 on a faster or otherwise more favorable basis than the initial basis for the case. It can facilitate coordination of cases between family members and can be a fairly efficient mechanism for making changes in the I-485 case. Questions about the use of this option in your particular case may be addressed in a consultation with a knowledgeable and experienced attorney at the Murthy Law Firm.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one originally published May 11, 2012, which remains relevant and has been updated for our readers.
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