“Interfiling” an Adjustment of Status Application
By Beata McCann, Immigration Attorney
Recently, you may have heard the term “interfiling” used when discussing the I-485, Application to Register Permanent Residence or Adjust Status. But what does this term mean?
There are 2 popular categories used for filing an employment-based green card (both are PERM-based): EB-2 and EB-3. EB-2 is the second preference visa category and is used for members of the professions holding an advanced degree or its equivalent (interpreted as a Master’s degree or a Bachelor’s degree plus 5 years of related experience), or a person who has exceptional ability. EB-3 is the third preference visa category which includes professionals (defined as someone with at least a Bachelor’s degree), skilled worker (defined as a worker with at least 2 years of post-secondary education or at least 2 years of experience), or other worker.
A worker who fits into the EB-2 category necessarily fits into the EB-3 category, as the requirements are less stringent for the EB-3 category. Therefore, it is not uncommon for a foreign national to have an approved I-140 Immigrant Petition in both the EB-2 and EB-3 categories. However, when the foreign national filed the I-485, Application to Register Permanent Residence or Adjust Status, s/he had to choose one of those I-140s to back the I-485. Traditionally, the EB-2 petition was the preferred petition, as the EB-2 “priority date” chart was not as backlogged as the EB-3 chart on the Visa Bulletin.
What is a priority date and what does it mean if it is backlogged? The priority date is the date the PERM (ETA-9089) was filed with the Department of Labor. It is a sort of placeholder of where you are in line for a green card. Every month, the Department of State publishes the Visa Bulletin that lists the current priority date. If your PERM date is before the priority date published for your country of birth, you are “current” and you may file the I-485. Most foreign nationals are not concerned about their priority date, as it is typically listed as “C” (current). This means that there remain open enough congressionally-issued visas available for that country for anyone that wants to file for a green card.
There are several countries, however, where the annual demand for a green card exceeds the number authorized by Congress for that country, creating a backlog and a line for green cards. This is where the priority date is important: it is your place in that line. There are 2 countries that currently have a green card backlog: China and India.
These are the foreign nationals that typically possess an I-140 in both EB-2 and EB-3. They are racing the 2 charts to see which chart shows their priority date as current first. As mentioned above, the EB-2 chart typically moved through the priority dates more quickly, becoming current for an individual first. Therefore, historically EB-2 was the preferred filing category. However, in recent years, EB-3 became current more quickly for individuals from China and India. Therefore, EB-3 became a popular filing option and many Applications to Register Permanent Residence or Adjust Status were filed with the EB-3 petition backing the application.
Within the past year, the EB-2 category righted itself and is now more current than the EB-3 category. This is where “interfiling” comes into play. It is the process of asking USCIS to adjudicate the I-485 under a different preference category, such as an EB-3 based petition swapping the underlying basis to an EB-2 petition. Traditionally, “interfiling” was a loose process that was discretionarily approved by United States Citizenship and Immigration Services (USCIS). However, USCIS is now strongly suggesting that any foreign national that filed an I-485 based on an EB-3 Immigrant Petition but also has an available EB-2 petition and as EB-2 visa number is available for them now interfile their EB-2 petition into their pending green card application. The USCIS alert issued on March 17, 2022, states:
In the recently published April Visa Bulletin, the Department of State advanced the Date for Filing (also known as the application date) applications for an immigrant visa or adjustment of status in the employment-based, second preference (EB-2) category for India from Sept. 1, 2013, to Sept. 1, 2014.
If you are a noncitizen who has an approved immigrant visa petition in the EB-2 category chargeable to India and a priority date earlier than Sept. 1, 2014, USCIS encourages you to consider applying for adjustment of status in April by filing Form I-485, Application to Register Permanent Residence or Adjust Status. You should include your Form I-693, Report of Medical Examination and Vaccination Record, with your Form I-485 to save time. You are not required to file Form I-693 at the same time you file Form I-485, but filing both forms at the same time may eliminate the need for USCIS to issue a Request for Evidence to obtain your Form I-693. This may also help avoid adjudication delays if we decide that you do not need to be interviewed.
As previously announced, we continue to encourage eligible applicants to consider requesting to transfer the underlying basis of their pending adjustment of status applications in the EB-3 category to the EB-1 or EB-2 category if they meet the following criteria: a visa is unavailable to them in the EB-3 category; they have a pending or approved Form I-140, Immigrant Petition for Alien Workers; and a visa is available in the EB-1 or EB-2 category.
For more information, please see the Green Card for Employment-Based Immigrants page and the Visa Availability and Priority Dates page.
In order to qualify for interfiling, the following requirements must be met:
There must be no break in the continuity of the applicant’s underlying eligibility to adjust from the date the I-485 application was filed until the date USCIS receives the transfer request.
I-485 applications based on petitions determined to have been filed fraudulently or with willful misrepresentation cannot be transferred.
There must be no break in the continuity of the I-485 application, such as a withdrawal or denial for an unjustified failure to appear at scheduled interview or where a final decision has been made, even if USCIS subsequently reopens or reconsiders the final decision.
The priority date for the new immigrant visa category must be current based upon the “Final Action Date” on the date the transfer request is made.
If you qualify for interfiling, be aware of the following conditions before you decide to interfile:
Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition should serve as the new basis.
If a transfer request is granted, the original petition will no longer support the adjustment application. Understand that if the priority dates are moving back and forth between EB-2 and EB-3, you may end up “chasing your tail” if you interfile and the Visa Bulletin changes again. The USCIS Policy Manual states that “if the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time.” This interfile request is the only time you can make this request.
Important note with regards to portability: If an employment-based applicant requests to transfer the adjustment application to a different employment-based category, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request. Therefore, you must remain with the employer who sponsored your green card for another 180 days after filing your interfile request.
To transfer a derivative beneficiary’s adjustment application, the principal adjustment applicant must maintain eligibility until the transfer request and the relationship between the principal and dependent must continue to exist. If the principal transfers his or her adjustment application to another basis that does not allow for derivatives, the derivative loses eligibility for adjustment of status at the time of the transfer.
In the case of a derivative whose principal continues to maintain eligibility for adjustment and in which the relationship between the principal and derivative continues to exist, the derivative may request a transfer of the adjustment application from one basis to another and is not limited to transferring to another derivative category.
To request interfiling, send a written request to USCIS with enough identifying information so that USCIS is able to ascertain which I-485 application is referenced and which I-140 petition will form the new basis for the I-485. If the interfiled I-140 has already been approved, file an I-485 Supplement J with the interfile request as evidence that the I-140 EB-2 job offer remains open. For filing instructions and filing addresses, please see the USCIS website.