There are some less-known options for making changes to the basis of a permanent resident (“green card”) case after reaching the adjustment-of-status (I-485) stage, which are discussed here for the benefit of Karasik Law Group Blog readers.
Specifically, I want to address process of interfiling, also referred to as conversion, utilized when an I-485 applicant wants to change the underlying immigrant petition that will serve as the basis of the I-485 approval. I will briefly discuss when this strategy can be beneficial, as well as the eligibility criteria for interfiling a new or different immigrant petition into a pending I-485 application.
The concept of interfiling is fairly simple. It allows one to replace the underlying immigrant petition with another immigrant petition during the pendency of one’s I-485 application. An immigrant petition is, most commonly, the I-140 employer-sponsored petition or the I-130 family-based petition. Thus, in an employment-based case, if one visualizes the I-140 petition as a pillar supporting the I-485, interfiling is simply switching one supporting pillar with a different pillar. As explained below, this procedure can be used in a variety of situations involving pending I-485 cases.
It should be noted that the concept of interfiling is not to be confused with pure priority date retention. Priority date retention involves keeping or assigning the priority date from an earlier-approved I-140 to a later-filed I-140 petition. While interfiling might also be used with priority date retention, they are two separate procedures, not always used together.
USCIS Refers to it as “Conversion”
The U.S. Citizenship and Immigration Services (USCIS) memoranda and the Adjudicator’s Field Manual (AFM) use either the term transfer or conversion for what most foreign nationals and immigration law practitioners refer to as interfiling. The underlying basis for a green card case may be converted in a number of situations.
Examples of Interfiling / Conversion
One common example familiar to many practitioners is the EB3 to EB2 “upgrade” option, as an employee who is waiting for years for a green card to become available with an approved EB3 I-140, and in the meanwhile has obtained additional education, training and qualifications, can ask the same or a different employer to file for another I-140 based on EB-2 criteria and “upgrade” the I-485 to a new petition.
In another common example, one has I-140 pending based on EB-1A “extraordinary ability”, and the beneficiary files another I-140 based on “National Interest Waiver” EB-1 category, and converts or interfiles pending I-485 to a new petition.
An employee with EB-2 based I-485 can convert to EB-1C Multinational Manager, or some other category where the green card is immediately available.
The conversion or interfiling option can also be used in what are less familiar scenarios. For example, it is available sometimes when an individual has filed an I-485 application based upon an employer’s I-140 immigrant petition, but s/he wishes to change the underlying I-485 basis to an approved family-based petition.
Possible scenarios may even include switching the underlying basis from one spouse to the other, but it is important to understand the general criteria that govern all such interfiling or conversion requests. It is also important to understand, as explained below, that interfiling is a creation of Legacy INS and the USCIS, and its use therefore is dependent upon policy considerations. The acceptance of such cases has evolved over time and is largely discretionary.
Eligibility Criteria for Interfiling / Conversion
The criteria for interfiling are not written in the law or any regulation. Interfiling, or conversion, is purely an administratively created procedure and is described only in guidance for USCIS adjudicators – specifically, the AFM and USCIS memoranda. As such, the decision to grant any particular type of interfiling request is discretionary, and not guaranteed. If all the conditions set by the USCIS are satisfied, however, there is a good chance that the interfiling request will be approved, as this serves USCIS’s interests of efficiency. It also facilitates the applicant’s goal of obtaining permanent residence by saving time, effort, and multiple filing fees.
The AFM requires that the request be made in writing. There is, however, no specific form or format for this request. Additionally, there are cases in which the USCIS will initiate a conversion without a written request.
I-485 Applicant Must be Continuously Eligible for Approval
The applicant should have no breaks in continued eligibility and pendency of the I-485 application. For this reason, it is often necessary to be proactive in interfiling requests. If the interfiling or conversion request is made after the applicant’s previously held I-485 eligibility ended, the USCIS can no longer consider an interfiling or conversion request. For example, if one previously filed an I-485 based upon an employment-based, third preference (EB3) I-140 petition in 2012, s/he may later consider the option of upgrading to EB2. In that event, an employer would file a new PERM labor certification and I-140 petition in the EB2 category. Once the EB2 I-140 is approved, an interfiling request can be made. At all times, one must either still have the EB3 job offer or a job offer that meets the portability requirements under the American Competitiveness in the 21st Century Act (AC21).
In the above example, the individual has continuous, uninterrupted eligibility through the EB3 case. Continuous eligibility essentially means always having a good case. There was nothing wrong with the EB3 case described here other than the backlog in visa number availability.
Priority Date and Other Considerations
The interfiling request should be based on a priority date that is current, although many such requests are initiated prior to that point. Regardless, no action is taken by the USCIS unless the priority date under the new basis case is current. Additionally, it is required that the adjustment applicant not be subject to any bar on admission based on the new immigrant petition, even if s/he was exempt from these inadmissibility bars at the time of the initial filing.
There can be many benefits derived from the ability to use interfiling / conversion in an I-485 case. The interfiling option can be quite helpful as a way to obtain approval of a pending I-485 on a faster or otherwise more favorable basis than the initial basis for the case. It can facilitate coordination of cases between family members and can be a fairly efficient mechanism for making changes in the I-485 case. Questions about the use of this option in your particular case should be addressed in a consultation with your immigration attorney.