I-485 Interfiling ? My EB2 PD is current ?

Many Indian nationals that filed a 485 in the fall of 2020 using a downgrade EB3 I-140 have now found themselves in a situation where their EB3 priority date has retrogressed but, their original approved EB2 priority date has now moved ahead and may be current or, based upon more recent DOS proclamations, is expected to be current much faster and the obvious question is how do I switch my EB3 I-485 to EB2 ? Unfortunately, there is not an easy answer. AILA (American Immigration Lawyers Association) attempted to work with the USCIS to create a simple process that would benefit both the Service and those affected (years ago, the USCIS had a dedicated email account for this type of request) but, no solution has been created yet. Below are some common Questions and our current answers. We will update this if a better system is developed.

  1. Is it legal to switch categories ? the clear answer is yes. The USCIS refers to this as a “Transfer of Underlying Basis” and it is described in the USCIS Policy Manual
  2. Do I have to file a new I-485 ? The answer is no but, in some cases, you may wish to do so.
  3. I have heard about “interfiling” what is that ? Interfiling is not a legal concept found in any statute, regulation, or policy manual. It was a term used in a USCIS memo from 2000 to explain the Transfer process.
  4. If I don’t want to file a new I-485, what action can be taken to Transfer my underlying basis form EB3 to EB2 ? There are a number of actions that can be taken either personally or by your immigration attorney. These all involve communication to the USCIS using a variety of methods i.e. ask Emma, Service requests, a written request, Congressional intervention, etc. If you choose to take on these actions personally, please be very careful that you do not unintentionally withdraw your I-485.
  5. When can I take action ? Your priority date must be current under the Final Action Date chart.
  6. Must my downgraded EB3 I-140 be approved to Transfer my underlying basis ? No but, having it approved may avoid questions and delays in your case.
  7. If I want to file a new I-485, when can I do that ? Your priority date must be current under whichever Visa Bulletin chart the USCIS is honoring for filing. This may change each month. Check the USCIS page for this information.
  8. Is there anything else I should be concerned about before I elect to try and Transfer my underlying basis ? yes. Although it has not happened yet for Indian nationals, Chinese nationals have experienced a yo-yo of forward and backward movement of EB2 and EB3 dates and there is no guarantee that the EB2 dates will remain ahead of EB3 dates.

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