For many years, the EB2 India category reliably had a cutoff date more favorable than its EB3 counterpart. Since October 2020, however, there has been some back-and-forth, with the EB3 India cutoff date surging ahead of EB2, then EB3 stalling and the EB2 cutoff date again passing it. This has led to a spike in interest in interfiling. In these FAQs, our answers some frequently asked questions on interfiling.
What is interfiling? Is this different from “transferring the basis” of my I-485? Also, is this different from “upgrading” or “downgrading?”
If a foreign national has a pending I-485 and wishes to change the basis for the I-485 (e.g., substitute an EB2 I-140 for the EB3 I-140 submitted with the I-485 application), the USCIS refers to this process in its policy manual as a transfer of the underlying basis. Immigration lawyers typically refer to this process as interfiling.
The more informal terms, “redesigning” and “downsizing” in the I-485 setting, are inseparable from interfiling and allude to moving to start with one employment-based category then onto the next.
What are the requirements to transfer the basis of my I-485 from one category to another?
To qualify to interfile, the USCIS requires that ALL the following conditions are satisfied:
- The candidate should have continuously maintained eligibility to adjust status.
- The I-485 application should be pending.
- The candidate must be eligible for the category requested.
- The priority date should be current on the date the interfiling request is submitted.
How do I request to transfer the basis of my I-485?
To transfer from one employment-based category to another, the request should be submitted in writing and typically include a signed and completed I-485 supplement J form. The USCIS declared that requests for transfers between two employment-based categories should be sent to a special address through September 30, 2022. That information can be found here, in the section entitled “Transfer of Underlying Basis.”
Will the USCIS acknowledge my transfer request?
The USCIS won’t give a written response to transfer requests. However, the USCIS will give a receipt notice for the I-485 supplement J form.
Do I have to be invalid nonimmigrant status to transfer the basis of my I-485?
No, this isn’t a requirement. The candidate generally should be in valid nonimmigrant status at the time the I-485 application is filed. For interfiling, however, if the individual is in a period of authorized stay, or possibly even outside the U.S. (having traveled on advance parole or while on an H or L status), this normally should not prevent the individual from submitting an interfiling request.
Can I transfer the basis of my I-485 from EB3 I-140 to EB2 I-140 and then change jobs?
Pursuant the American Competitiveness in the Twenty-First Century Act (AC21), an individual might move to a position that is in the “same or similar occupational classification” as the one outlined in the underlying PERM labor certification once the I-485 has been pending for at least 180 days. This 180-day “clock” restarts upon the submission of an interfiling request. (i.e., Yes, AC21 portability may still be possible after interfiling, but only if the applicant waits at least 180 days from the date of the interfiling request.)
There is the worry that this USCIS guidance conflicts with the language of AC21. Hence, the American Immigration Lawyers Association (AILA) has requested clarification from the USCIS on this matter.
I filed my I-485 concurrently with an EB3 I-140, and both the I-485 and I-140 are still pending. Can I interfile an EB2 I-140?
Potentially, this is permitted. However, in a situation like this, it isn’t clear whether the USCIS will first adjudicate the EB3 I-140 and then adjudicate the EB2 petition, or if the USCIS will only adjudicate the EB2 I-140. We await clarity on how the USCIS will handle such cases.
Instead of interfiling, am I better off just filing another I-485 application?
As a general rule, the USCIS suggests that candidates interfile, rather than submit a new I-485 adjustment of status application. However, there might be situations where filings a second I-485 might be a superior choice. This is something you should discuss with your lawyer.
Will my EAD/AP still be valid if I interfile?
Submitting an interfiling request should not affect the validity of one’s current EAD/AP. Similarly, if one’s EAD and AP applications are pending when an interfiling request is made, the USCIS should continue to process those applications per normal.
If I upgrade from EB3 to EB2, am I allowed to later downgrade back to EB3 if needed?
Historically, the USCIS has allowed an individual to interfile between categories more than once if needed.