Interfiling New Immigrant Petition into Pending I-485 Case (2 of 2)

In Part 1 of this two-part NewsBrief, MurthyDotCom readers were provided with an explanation of the procedure known as interfiling, also known as transfer of basis. Continuing from where Part 1 left off, we now address how such requests can be made, as well as some of the less commonly known uses of the interfiling option for I-485 cases.

When and How to Make the Request

Proactive Request for Interfiling

An interfiling request may be made in a number of different contexts. Most commonly, the applicant may wish to make such a request proactively while the I-485 is still pending. Depending upon the location of the file, this request is generally made either by letter or, in some cases, by eMail to a designated USCIS address. Depending upon the context in which the request is made, the U.S. Citizenship and Immigration Services (USCIS) may or may not acknowledge the fact of the interfiling. In many cases, no acknowledgement is given. The I-485 applicant does not learn that the request has been granted until the USCIS issues an approval of the I-485 green card application based on that request.

There is neither a USCIS form nor any specific instruction as to the precise manner for making such requests. While the request is supposed to be in writing, there are times when the USCIS will initiate this action independently, which can create problems if the I-485 applicant did not desire this result.

Making this request proactively may help to avoid receipt of requests for evidence (RFEs), notices of intent to deny (NOIDs), or denials, particularly if there is a problem with the immigrant petition that formed the initial basis of the I-485. However, at the Murthy Law Firm we have also seen the USCIS issue RFEs after a proactive request for interfiling. These RFEs essentially are seeking the same interfiling request. This is not a reflection of anything wrong with the case; it is merely an internal USCIS procedural preference in some cases.

Interfiling with RFE, NOID, or MTR

Interfiling requests are sometimes made, or reiterated, in response to an RFE or NOID. In some cases, the USCIS may suggest in an RFE or NOID that the applicant request interfiling or otherwise ask if it is desired.

There are times when applicants become aware of concerns about their I-485 cases via receipt of RFEs or NOIDs that would be best addressed by using interfiling. This option can provide a new and more likely way for the USCIS to approve the I-485, if all other requirements are met. The RFE or NOID, therefore, can provide a good avenue for bringing the alternative basis for I-485 approval to the attention of the USCIS.

A motion to reopen or reconsider (MTR) following the denial of an I-485 can also provide a vehicle for making or reiterating an interfiling request. We at the Murthy Law Firm have been successful with requests of this type; however, it is not an option in every case. There are a number of technicalities that should be discussed with a qualified, knowledgeable immigration attorney.

Interfiling Between Spouses’ I-485s in Employment-Based Cases

Some of the less common, but possible, scenarios in which interfiling can be helpful include those where a dependent application for adjustment of status is converted to a primary application or vise versa. There are many situations in which spouses have pending employment-based (EB), adjustment-of-status applications with one spouse as the primary and the other as the derivative (dependent) beneficiary. If the dependent spouse also has an approved I-140, it may be possible to covert the pending I-485s to the (previously) dependent spouse’s I-140, if it would be beneficial to do so.

Example: Interfiling New EB2 Case of Other Spouse

Ravi and Preethi are married. In 2006, Preethi’s employer filed a PERM labor certification for her and also obtained the approval of an EB3 I-140. In the summer of 2007, Preethi filed an I-485 application based upon her approved EB3 I-140. Ravi also filed an I-485 at that time, as a derivative beneficiary in his wife’s EB3 case.

Ravi’s employer filed a PERM labor certification for him in 2008, and obtained an approved EB2 I-140 on Ravi’s behalf. Ravi and Preethi could request that their I-485s be converted from EB3 with Preethi as primary and Ravi as the derivative to EB2 with Ravi as the primary and Preethi as the derivative. The USCIS could act on this request, provided Ravi’s priority date is current.

This request should be made in writing, and requires that the adjustment applications are and have always been viable – essentially that it was always a “good” case. This request for interfiling would not be likely to work if, for instance, something went wrong with Preethi’s case before Ravi’s priority date became current. In such an event, Ravi’s case could not take over as a basis for supporting the I-485.

Interfiling Between Employment and Family-Based Cases

It is also possible to change between EB and family-based (FB) cases in an interfiling scenario. There are many situations in which a person may have an EB and FB case or may have both options available. It is possible to pursue both and take the one that allows for the approval of the I-485 first. Interfiling makes it easier to coordinate the two options.

Example: Interfiling New FB Case Through Spouse

Ravi is a permanent resident at the time he and Preethi are married. Preethi holds H1B status and has a pending I-485 in the EB3 category, with a 2006 priority date. Ravi can file an I-130 relative petition for Preethi, in the FB2A category for spouses of permanent residents. If the priority date for the FB2A case becomes current before the EB3 case, Preethi could request that her I-485 be converted to allow her to adjust status through the FB2A case, rather than the EB3 case.

Preethi may need to be careful when considering the option of changing to the FB2A case, as the rules for adjusting status in EB cases are somewhat different from FB cases. EB cases allow for forgiveness of up to 180 days of certain status violations under Section 245(k) of the Immigration and Nationality Act. Family preference cases (as different from immediate relative cases) do not have these forgiveness provisions. The different rules for adjustment of status that apply to different types of cases therefore should be considered before making such changes.

Many Other Variations for Interfiling

While the above examples pertain to spouses, there are other instances of interfiling that do not involve spouses. These may be situations in which individuals are beneficiaries of more than one type of family-based petition, or the beneficiaries of non-spousal family-based petitions as well as employment based. Whatever the variation, if the rules are met, it is possible to request to interfile or transfer an alternative immigrant petition into a pending I-485. The USCIS decision as to whether to grant such a request is discretionary.

Benefits of Interfiling

It should be clear that there are many potential benefits that can be derived through the interfiling option. Conversion of the basis for adjustment of status can avoid the need for additional filings and the related fees. It can allow for a faster and more efficient route to permanent residency. It can also avoid denial of pending I-485s when their initial bases are no longer valid, but there are alternative ways for the cases to be approved.

Conclusion

Interfiling has many potential benefits, but it is important to remember that granting such requests is discretionary and all eligibility criteria must be met in order to be successful. Given the variations in requirements for different types of cases, individuals considering interfiling should seek the legal counsel of attorneys who are knowledgeable and experienced prior to taking any such action. The Murthy Law Firm has been successful in many cases of this type and our attorneys are always happy to advise on interfiling options.

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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