On January 21, 2022, USCIS announced a revised procedure regarding the process of transferring the underlying basis of a Form I-485 to a different employment-based I-140 preference category (a process often called “interfiling”). If an I-485 applicant has another I-140 petition in a more favorable category with a current priority date under Final Action and if they still have a continuing job offer from that I-140 sponsoring employer then they may be able to ask USCIS to change the basis of their I-485 petition in order to allow faster I-485 adjudication.
Background of the Interfiling Process
According to recent USCIS disclosure, there are an “exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022).” There are significantly more visas available in EB-1 and EB-2 than there are I-485 adjustment of status applications pending with USCIS. The ability to transfer the underlying basis of a pending I-485 Application to Adjust status is not new; our office has been doing this process for many years. However, the mismatch between available numbers in EB-1 and EB-2 and the surge in filings under EB-3 has caused a misallocation between the employment-based preference categories.
As a result, employment-based I-485 applicants awaiting adjudication based on their downgraded EB-3 I-140 immigrant petitions (many filed in late 2020) and who have either pending or approved EB-2 immigrant visa petitions should consider utilizing this interfiling process to increase the likelihood of the final adjudication of their Form I-485 application prior to the end of the government fiscal year on September 30, 2022.
Who is Eligible to Interfile?
A primary employment-based I-485 applicant must meet certain conditions in order to be able to interfile successfully. Note that the interfiling request is being submitted by the primary I-485 applicant; derivative I-485 applicants do not have to file separate interfile requests.
Pending I-485. The I-485 application must remain pending and must have been filed on the basis of an I-140 petition. The I-140 petition (often an EB-3 downgrade) can be approved or it can remain pending. There must not have been other interfiling requests done on the I-485 as USCIS suggests that the interfiling can be done only once. It is unclear if the interfiling remains an option if an applicant has already ported their I-485 to a new employer under the AC21 I-485 portability rule.
Maintained Status and I-485 Eligibility. The I-485 applicant must have been in valid status at the time of I-485 filing (subject to Section 245(k) exceptions) and must remain eligible for I-485 approval, including being eligible for the position described in the other I-140 petition which is being sought to be the underlying basis.
Visa Number Immediately Available. The I-485 applicant must also have current priority date for the category the applicant wishes to use under the Final Action Dates chart of the Visa Bulletin for that month.
How Does the Interfiling Process Work?
A request to transfer a pending Form I-485 from one employment-based preference category to another employment-based preference category must be made in writing, with a completed Form I-485 Supplement J (if required) to the following address no later than September 30, 2022:
U.S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350
The interfiling should include a I-485 Supplement J form duly completed and signed, together with evidence that the I-485 applicant meets the requirements for interfiling. When our office submits such requests, while not required, we like to provide a legal memorandum which explains clearly and thoroughly explains how the I-485 applicant is eligible for the interfiling, including that a visa number is immediately available, and ask for an expedited I-485 approval.
USCIS will not issue a receipt notice or other confirmation of receipt or approval of the interfiling request (so it is important to file with a trackable service such as FedEx and retain a copy of the entire filing and evidence of successful delivery to USCIS). USCIS will, however, issue receipts for the I-485 Supplement J form.
Frequently Asked Questions
Can I Interfile If I Have Used I-485 EAD to Work? Yes, an I-485 applicant does not have to be in a nonimmigrant status (such as H-1B) in order to interfile. They must have been in valid status, at the time the I-485 was initially filed. It is also not a problem for the primary I-485 applicant’s interfiling if I-485 derivative applicants are using EAD to work.
My Concurrent EB-3 Downgrade I-140 Petition is Still Pending — Can I Still Interfile? According to recent USCIS guidance, the answer is Yes. There are still many EB-3 downgrade I-140 petitions pending which were filed with a concurrent I-485 and in these cases it is still possible to transfer to a previously-approved I-140 petition assuming that the applicant and the I-140 sponsor employer confirm the validity of the job offer by submitting a Supplement J.
Is This Option Only Available to EB-3 Downgrade Applicants? Although the bulk of the I-485 Applicants who would benefit from the interfiling are late 2020/early 2021 EB-3 (mainly India) downgrade applicants. In the EB-3 downgrade scenario, generally there is an existing and valid I-140 EB-2 petition which can be used for the I-485 interfiling request. But it is possible to take advantage of the I-485 interfiling option in other scenarios as well.
Can I Interfile My I-485 Multiple Times? According to USCIS Policy Manual (Volume 7 – Adjustment of Status, Chapter 8 – Transfer of Underlying Basis, Section E), once a transfer request is granted, the applicant is not permitted to request transfer to a third basis with some possible exceptions within the EB categories.
Can I Port my I-485 to a New Employer Under AC21 and Then Interfile the I-485 to a Prior Employer’s I-140? USCIS has not provided clear guidance on this scenario; however, we anticipate that USCIS will not treat AC21-ported I-485 applications differently and would agree to transfer a pending I-485 to a new I-140 as long as the other requirements are met, including having Supplement J continuing job offer confirmation by the I-140 sponsor employer. Essentially, we anticipate that USCIS will allow an I-485 applicant to port their I-485 to a new employer under AC21 for same or similar job and then, at a later time, decide to go back to an I-140 sponsoring employer who would support the I-485 interfiling request.
When Can I Port My I-485 to a New Employer After Interfiling? USCIS has indicated that a request to interfile resets the 180-day clock for AC21 portability purposes. This period starts from the day USCIS receives the interfiling request. The new AC21 portability position must be in the same or similar classification as the I-140 petition to which the pending I-485 was transferred.
I Have Already Submitted an Interfiling Request to USCIS Field Office/Service Center — Can I File Another Request Based on the New USCIS Guidance? USCIS has clearly indicated in their guidance that I-485 applicants who have already filed an interfiling request should not file another identical request.
Can I Interfile My I-485 If My Priority Date Is Not Current under Final Action? No. USCIS allows the interfiling request only when the “visa is immediately available” which means that the priority date for the category of the I-140 to which the case is being transferred to must be current under “Final Action” for the month when the interfiling request is made. Only then a visa is considered to be “immediately available.”
How Can I Determine If My Priority Date Is Current Under Final Action? The interfile must be done only when there is a visa number “immediately available” which means that the priority date must be current under Final Action. To determine the cutoff date you should look at the Visa Bulletin for the month during which the interfiling request is filed. To have a visa immediately available, the priority date must be earlier than the cutoff date for the preference category (e.g. EB-2 India).
In the example below, for the month of February 2022, I-485 applicants from India with a priority date before January 1, 2013 can submit an I-485 interfiling request.
Can I Call USCIS and Request Interfiling Over the Phone? No, the request must be made in writing only and in accordance with the USCIS guidance on how to do so.
Will I Receive a Receipt and Approval of the Interfiling Request? USCIS will not send any written confirmation of receipt or approval of the interfiling request. They will mail, however, a Supplement J receipt notice and, when the I-485 is approved, they should also issue an I-485 Supplement J approval notice.
Is My Interfiling Request Guaranteed to be Approved? Unfortunately, no. USCIS cautions that transferring the underlying basis to another I-140 is discretionary; however, our experience has been that when an interfiling request is well made, USCIS generally approves it. Due to the current backlogs and delays at USCIS, however, this may take time.
For the Interfiling Request Do I Have to Use the Same Attorney Who Filed My I-140 and I-485? No, the I-485 is the individual applicant’s filing so the I-485 applicant gets to choose the lawyer who would file the interfiling request on their behalf. The I-140 sponsor employer must agree to sign the Form I-485 Supplement J which is essentially a confirmation that they still have the I-140 position open and available to the I-485 applicant.
How Can Our Office Help You?
We have been very active in helping eligible I-485 applicants interfile their eligible pending I-485 applications to a new I-140 basis and advance their applications. Here are some common ways our office can help.
Interfiling Analysis/Phone Consultation. We offer a variety of phone-based consultations to analyze a possible I-485 interfiling scenarios. We can review and discuss the eligibility factors and analyze whether a case is a good candidate for interfiling.
I-485 Interfiling Package. We also offer a I-485 Interfiling/Form I-485 Supplement J package where, for a flat attorney fee, we will prepare and file all of the I-485 Interfiling/Supplement J documents with USCIS for the primary applicant. It includes becoming a G-28 attorney of record for the I-485 applications for all family members and, for no additional fee, includes responding to RFE relating to this interfiling request in the future. There are no government fees associated with the I-485 Interfiling/Supplement J request. Please contact us if we can help.
Conclusion
As many I-485 applicants are now becoming (or will soon be) eligible for I-485 approval under a different preference category, we hope that many will consider the benefit of interfiling their I-485 to a new and current I-140 petition. USCIS is making efforts to quickly allocate the available visa numbers (especially for EB-1 and EB-2) and we expect that they will be able to approve many I-485 interfiling requests within the coming months.
Our office is happy and available to assist with I-485 interfiling case analysis and with the actual submission of such requests.. Please do not hesitate to contact us or consider our consultation options. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.
The post I-485 Interfiling: How to Transfer the Underlying I-140 Petition for Faster Approval appeared first on Capitol Immigration Law Group PLLC.
