By now most people are familiar with the concept of filing a downgrade application from EB-2 to EB-3. However, last October so many applicants filed downgrades, that the demand for EB-3 green cards, has far exceeded the number available, resulting in severe retrogression, especially for EB-3 India. In November 2021, EB-3 India dates retrogressed by 2 years meaning many of those who filed will not be eligible to have their files adjudicated.
Because EB-2 India dates continue to move forward there is a possibility for many that their priority date will become current under EB-2 before it does under EB-3. The question then arises whether it is possible for an applicant to have their I-485 adjudicated based on the prior EB-2, rather than the EB-3, and if so, what steps need to be taken.
This is where interfiling can be helpful. Interfiling is the simple process of asking USCIS to adjudicate the I-485 under a different preference category. The USCIS Policy manual specifically states that a candidate may opt to have their I-485 considered under a different category.
At the time of writing the original article, USCIS had not specified a process by which an individual could make an interfile request. USCIS had previously stated that it was very difficult for them to accommodate an interfiling request and based on advice from the American Immigration Lawyers Association (AILA) I had recommended that applicants should consider filing a second, I-485.
However, as of January 26, 2022, USCIS has now updated its website. They state that to request to transfer the underlying basis of your I-485 to a different category, USCIS, may, in its discretion (everything they do is discretionary!) grant a transfer if the following criteria is met:
- The Applicant has continuously maintained eligibility for adjustment of status;
- The Applicant’s adjustment of status application based on the original Form I-140 is still pending;
- The applicant is eligible for the new immigrant category; and
- The applicant has a visa immediately available in the new immigrant category.
Applicants wishing to file an interfile request must do so in writing by sending a letter to the following address (through September 2022):
Attn: I-485 Supp J
U.S Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 917693-1350
Applicants must clearly state that they wish to transfer their pending I-485 from one basis to another category. USCIS has also stated that if applicants are transferring their I-485 to a category where the previous I-140 has been approved they will also need to include I-485 Supplement J, to confirm that there remains a bona-fide job offer. Therefore, if an applicant’s previous EB-2 filing was approved they will need to submit I-485 Supp J. On the other hand, if their prior I-140 remains pending, I-485 Supp J is not required.
The main benefit of interfiling is that applicants do not have to file another I-485 and thereby saving themselves the cost of having to re-pay the filing fees.
One very important factor in making an interfiling request is that an applicant cannot switch jobs under the portability rules until 180 days or more after making the interfile request. Furthermore, because only one petition can support an adjustment of status application at any time, if an applicant makes an interfile request by asking USCIS to adjudicate the case under EB-2 rather than EB-3, if the EB-2 dates suddenly retrogress and EB-3 becomes current, the I-485 cannot be adjudicated based on the EB-3, unless a second interfile request is made.
For any questions related to the above or any immigration related matters please contact PLG Partner Chris Prescott at cprescott@patellegal.com.