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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. However, it does not specifically state the process by which this can be accomplished.

USCIS has stated that it is very difficult for them to accommodate an interfiling request and therefore applicants may want to consider filing a second, I-485. To do this their priority date would need to be current under the final action date chart and they would also need to be maintaining nonimmigrant status. Therefore, an applicant who filed I-485 concurrently with an I-140 downgrade and did not maintain H-1B status would not be eligible to file a second, I-485. For those applicants, it will be necessary to make an interfile request. However, interfiling does not always work and remains discretionary.

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. However, filing a new I-485 will avoid the challenges associated with interfiling.

The American Immigration Lawyers Association has suggested the following methods to make a request to interfile:

Call USCIS Contact Center and make a verbal request. However, it may be necessary to speak to a Tier II officer.
Make a request using Emma, the online chat feature on the USCIS website.
Make a request in writing.
Request Congressional Assistance.

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 you make 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, your 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.