Many more questions have been asked since the publication of our blog,  November 2021 Visa Bulletin Seesaw: Frequently Asked Questions, regarding transferring the underlying basis for an I-485 adjustment application filed with an I-140 petition under the India employment-based third preference (EB-3) to a previously filed I-140 under the India employment-based second preference (EB-2).

Since the November 2021 Visa Bulletin, the EB-3 India Dates for Filing (DFF) and Final Action Dates (FAD) have retrogressed while the EB-2 India FAD have advanced. Under the February 2022 Visa Bulletin, the FAD under India EB-2 is January 1, 2013 while the FAD under India EB-3 is January 12, 2012. Thousands of applicants filed concurrent I-140 petitions and I-485 applications when the India EB-3 DFF rapidly advanced under the October 2020 Visa Bulletin, as well as under the November 2020 and December 2020 Visa Bulletins. They are today justifiably disappointed that the USCIS had failed to approve their I-485 applications when the India EB-3 FAD advanced to January 1, 2014 under the September 2021 and October 2021 Visa Bulletins and then abruptly retrogressed under the November 2021 Visa Bulletin.  The silver lining is that the India EB-2 FAD has advanced rapidly, and many want to know whether they can transfer the underlying basis of an I-485 application filed with an I-140 under EB-3 to an I-140 under EB-2. There are also questions regarding whether the age of children will be protected under the Child Status Protection Act (CSPA) when transferring the underlying basis of an I-485 from EB-3 to EB-2.

Below are answers to frequently asked questions. Please note that the USCIS has not come out with much guidance on how to transfer the underlying basis and thus our answers are based on our own experience and not on government policy. We will continue to provide updates when we receive more guidance from the USCIS or based on further anecdotal experience.

Q1. The Final Action Date of my I-140 under EB-2 India is current while the I-140 under EB-3 has retrogressed. In your last blog, it was advised that it would not be necessary to file a new I-485 application. Has your position changed, and should I file a new I-485 application?

If the Form I-485 was filed concurrently with the EB-3 I-140, we still maintain that it is not advisable to file another I-485 for the EB-2 I-140. There is no guarantee that a separately filed I-485 based on the now current EB-2 I-140 will go to a different service center than existing I-485, or be processed any faster. However, one is not precluded from filing two I-485 applications. Anecdotal reports indicate that some non-concurrent I-485s filed at the TSC are later transferred to other Service Centers, including the Missouri Service Center (MSC, also referred to as the National Benefits Center), where they may be processed faster. Other non-current I-485s filed at the TSC remain there, stuck in the queue, or sent to another Service Center and remain pending. Thus, filing a second I-485 affords no guarantee that this application will be sent to a different Service Center, or will be processed any faster.

The USCIS has a policy of transferring the underlying basis of an I-485 from one I-140 petition to another. The USCIS Policy Manual contemplates such a transfer of underlying basis from an I-140 filed by one employer to an I-140 filed by another employer, and requires that the applicant write a letter, although USCIS often automatically approves the I-485 based on whichever I-140  is current if both have been filed by the same employer. There are times when the USCIS may also issue a Request for Evidence asking for more clarification. Automatically approving the I-485 on the most appropriate I-140  used to be USCIS’ policy some years ago when the China EB-3 overtook the China EB-2.  Although the USCIS Policy Manual explains that portability cannot be exercised under INA § 204(j) until 180 days upon the transfer of underlying basis, this applies when the transfer of underlying basis of the I-485 is with an I-140 filed by one employer to an I-140 filed by another employer, or when the second I-140 petition of the same employer is for a different position, but should not apply when there are two I-140s filed by the same employer for the identical position. Thus, if an employee has two approved I-140s with the same employer and identical position, USCIS should automatically connect the adjustment application to the I-140 that becomes current fastest, without the need for what one may term as interfiling or filing of a second adjustment application. In fact, filing a second I-485 may cause confusion at USCIS and result in further delays.

Q2. What is the difference between “interfiling” and “transfer of underlying basis”? Which should I pursue?

 A “transfer of underlying basis” refers to a request made to USCIS to request that the basis for an adjustment of status application be transferred from a pending or approved I-140 in one preference category to a pending or approved I-140 in another preference category. This process is described in the USCIS Policy Manual. Rather than a formal application, one requests a transfer of underlying basis by making a request in writing to USCIS. As outlined above, USCIS may also approved the adjustment based on whichever I-140 becomes current first on its own. One generally does not receive a receipt notice or any other formal acknowledgment from USCIS following a request for a transfer of underlying basis, and there is no guarantee that making such a request will result in faster processing of one’s I-485.

“Interfiling” refers to the same process as a “transfer of underlying basis”, but is a more antiquated term that existed in the prior Adjudicator’s Field Manual that is being replaced by the USCIS Policy Manual. The most current version of the USCIS Policy Manual references a transfer of underlying basis.

Q3. My I-485 was filed with my EB-3 I-140 and both are still pending at the Texas Service Center, but my previously filed and approved I-140 under EB-2 is current. If I file a second I-485 under the EB-2 I-140, might it go to a different service center and get approved faster?

 As mentioned above, we generally do not recommend filing a second I-485, as this is likely to result in confusion on the part of USCIS. Some USCIS service centers, including the TSC, in particular, are experiencing significant backlogs due to the pandemic and are processing applications more slowly than usual. However, USCIS designates the appropriate filing addresses for applications, and the filing location for adjustment applications based on an approved I-140 depends on the applicant’s address.  Thus, many adjustment applications will go to the Texas Service Center regardless, and one cannot select an alternative filing location.

Q4. My I-485 was filed with my EB-3 I-140 in October 2020, and this I-140 is still pending. My previously filed and approved I-140 under EB-2 is current. Can my I-485 be transferred to the EB-2 I-140?

 Yes, the I-485 that was concurrently filed with the I-140 under EB-3 can be transferred to the I-140 under EB-2, even if the EB-3 I-140 is still pending. Here too, one can write a letter to the USCIS Service Center where the I-485 is pending, attaching supporting documents such as the receipt notice of the pending I-485, approval notice for the EB-2 I-140, and the receipt notice of the EB-3 I-140, although it is not certain that USCIS will take action on this letter and will process the I-485 whenever it gets to it.

Q5. I filed my I-485 when my priority date was current under EB-3 India DFF, but the dates have since retrogressed. My priority date is no longer current under the EB-3 India DFF, but it is current under the EB-2 India DFF and I have a previously approved EB-2 I-140. If I want to write to USCIS requesting transfer of underlying basis or interfiling, should I do so now?

We recommend waiting until your priority date is current under the applicable EB-2 FAD, not DFF, to request a transfer of underlying basis. As outlined below, if protection of your child’s age is a concern, it is particularly important to ensure that interfiling is requested when the EB-2 I-140 becomes current, as an adjustment application filed pursuant to the DFF will not lock in a child’s age.

Q6. My family filed I-485s when my priority date was current under EB-3 India DFF, but they were still pending and then the DFF retrogressed since the November 2021 Visa Bulletin. Will my child’s age still be protected under the EB-2 I-140 if the FAD has become current?

Although we view this policy as erroneous, the USCIS Policy Manual makes clear that the concurrent filing of an I-485 based on a current DFF does not protect a child from aging out under the Child Status Protection Act (CSPA).  The child’s age, according to USCIS, locks in only when the FAD becomes current.  (It may be possible for certain people adversely affected by this policy to challenge it in federal court.)  The India EB-2 FAD is advancing ahead of the India EB-3 FAD. Thus, an I-485 that was filed concurrently with an EB-3 I-140 ought to lock in the child’s age when the EB-2 I-140 becomes current, even if the I-485 was filed concurrently with the EB-3 I-140 as there is a transfer of the underlying basis of the I-485 from the EB-3 to the EB-2 140.  Again, there does not seem any need to file a new I-485 only for the purpose of locking in the child’s age and the USCIS has not issued any guidance that one must do so, although it may be prudent to write a letter to the USCIS requesting the transfer of underlying basis. However, because of the lack of guidance from USCIS, those who want to play 100% safe may want to file a new I-485 in lieu of writing a letter to the USCIS requesting the transfer of underlying basis.

The CSPA ought to apply as the underlying basis of the I-485 filed with the EB-3 I-140 transfers to the I-140 filed under EB-2 provided the other conditions to lock in the child’s age under the CSPA are met. The I-140 must have been filed before the child’s 21^st birthday, and on the date when the FAD is current on either of the I-140s, the child is under 21. If the child is over 21 at the time the FAD is current, the CSPA allows the child’s age to be subtracted by the number of days it took from the filing of the I-140 petition to its approval. If the child’s CSPA age falls below 21 after the subtraction, it gets locked in until the I-485 is adjudicated. The child would have also sought permanent residency within one year of visa availability based on the I-485 that was filed with the EB-3 I-140, which has been transferred to the EB-2 I-140. The letter requesting transfer of underlying basis should satisfy the requirement that the child sought permanent residency within one year of the EB-2 I-140 becoming current, although the filing of a second I-485 application under this circumstance is recommended in order to be 100% safe in the absence of USCIS guidance.

Even if there is retrogression of the FAD after the CSPA locks in the child’s age, the child’s age will continue to be locked in until the FAD becomes current again and the I-485 is adjudicated.

Our prior blog provides further clarification on CSPA issues.

Q7. The Final Action Date for my I-140 under EB-3 India became current in September 2021 and before my child turned 21. If in November 2021, the FAD for my EB I-140 retrogressed, will my child be protected under the CSPA? Would the answer change if my I-140 petition was not approved when the FAD became current in September 2021?

 Yes. If your child was under 21 (or could subtract their age under the CSPA formula to under 21) on October 1, 2020, the CSPA will protect the age of the child even if the FAD under the India EB-3 retrogressed under the November 2021 Bulletin and is still retrogressed.

If the I-140 petition was not approved, and we assume that it was filed concurrently with the I-485, the USCIS Policy Manual requires that two conditions need to be met for the visa to be considered available for freezing the age of the child under the CSPA: 1) the petition is approved and the visa must be available for the immigrant preference category and priority date. However, the CSPA was enacted before the promulgation of the rule allowing a concurrent I-485 filing with a pending petition was promulgated, and so an argument can be made that if the pending I-140 was concurrently filed with the I-485 when the EB-3 FAD became current, the visa became available, and thus the child’s age is protected. Although the USCIS has not issued guidance for this specific scenario involving a concurrently filed I-140 and I-485, during the time when the July 2007 visa bulletin became current for one month, the filing of a concurrent I-485 with a pending I-140 seemed to protect the age of the child even though the employment-based dates retrogressed a month later and the I-140 petition got approved subsequently. We are not sure whether the USCIS will agree with this argument but there is clearly a precedent for this under the July 2007 visa bulletin.

Q8. My I-485 was filed with my EB-3 I-140 and my family already received our Employment Authorization Document/Advance Parole cards. If I request that the I-485’s basis be transferred to  my previously approved EB-2 I-140, do we need to reapply for EADs and advance parole?

 Even if you request a transfer of underlying basis, it is not necessary to re-apply if your application for EAD/AP is pending or has already been approved in connection with pending I-485. This is true even if you or a family member has already worked or traveled pursuant to EAD/AP.

Q9. I have a previously approved I-140 under EB-2 through my current employer, and also an approved EB-3 I-140 and concurrent I-485 that is still pending. My employer is terminating me and I have a new job offer with another employer? I know that I am able to port as my I-485 has been pending for more than 180 days.  Can I request for a transfer of underlying basis too when I port as my EB-2 I-140 is current?

 

INA 204(j) allows certain adjustment applicants with approved employment-based immigrant visa petitions in the 1st, 2nd, and 3rd preference categories to change jobs and employers if the adjustment application has been pending for 180 days or more, provided that the applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed. Hence, you should submit a Supplement I-485J after you change employers if you qualify. You can also write a letter requesting a transfer of underlying basis and attach a copy of the receipt notice of the I-485J.   

 

 The USCIS Policy Manual states that employees may not exercise portability until at least 180 days after making the transfer request, but this requirement seems to apply only to those who are transferring an I-485 to an I-140 filed by a new employer. If both I-140s were filed by the old employer, one may be able to port immediately and also make the transfer request, as the USCIS Policy Manual does not specifically address this scenario.

(This  blog is for informational purposes only and should not be viewed as a substitute for legal advice)

∗ Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.