Obtaining a green card in the United States is no easy task. The paperwork alone is voluminous and can be complicated without the help of a legal professional. Individuals who seek to adjust their immigration status to become lawful permanent residents (green card holders) must file a Form I-485 with United States Citizenship and Immigration Services (USCIS). The I-485 application to adjust status must be based on an underlying immigrant category, typically employment-based or family-based (such as marriage to a United States citizen).
Depending on an applicant’s circumstances, he or she may wish to change the underlying basis of the I-485 application, which is commonly known as “interfiling.” USCIS has a process that allows individuals to interfile in a pending I-485 case. USCIS calls this process a “change of underlying basis.” We will use the common terminology of interfiling for simplicity.
Underlying Petitions That Support an I-485 Adjustment of Status Application
In most cases, a person seeking to adjust his or her immigrant status by submitting an I-485 application to USCIS does so through employment or family. To obtain lawful permanent resident status, an employer or family member (who is a United States citizen or lawful permanent resident/green card holder) must file a petition and act as a sponsor. For an adjustment of status based on employment, an employer must file an I-140 immigrant petition for an alien worker under one of the following employment categories.
For most EB2 and all EB-3 categories, they must first obtain a labor certification, which is also called a Program Electronic Review Management (PERM) labor certification:
- EB-1 – Permanent Workers – Extraordinary Ability/Outstanding Professor/Multinational Executive
- EB-2 – Advanced Degree or Exceptional Ability
- EB-3 – Skilled Workers – Professionals and Other Workers
For an adjustment of status based on family, a family member (who is a United States citizen or lawful permanent resident) must file an I-130 immigrant petition for alien relative. There are several categories in the family basis ranging from the unlimited spouse, child of a US Citizen to numerically limited categories such as child of a permanent resident.
Different Ways to Interfile While I-485 Application is Pending
Interfiling while an I-485 application is pending can, in some cases, help individuals obtain an adjustment of status more quickly. Different circumstances in which an applicant can interfile to convert the immigrant category includes, but may not be limited to, the following:
- An applicant whose I-485 application is based on a petition filed by an employer (I-140) wishes the I-485 application to now be based on family. For example, suppose an applicant marries a U.S. citizen while an I-485 application based on employment is still pending. In that case, he or she may obtain an adjustment of status sooner if the application is family-based following marriage.
- An applicant whose I-485 application is based on a petition filed by a qualifying family member (I-130), such as marriage to a U.S. citizen, may wish to transfer the underlying basis to an employment-based petition. In doing so, the applicant may avoid the conditional residence requirements associated with an I-485 application supported by a family-based petition.
- An applicant whose I-485 application is based on EB-3 employment wishes the application to be based on EB-2 employment obtained during the pendency of the initial I-485 application. As further discussed below, it is often quicker for EB-2 visa holders to obtain an adjustment of status than for EB-3 visa holders.
EB-3 to EB-2 Interfiling – One Way to Speed Up the Adjustment of Status Process
Although there is no guarantee USCIS will grant a request to transfer the basis of an I-485 application, many applicants have found success in converting an application from one based on EB-3 employment to one based on EB-2 employment. If an applicant has a pending I-485 petition based on EB-3 employment and subsequently gains employment that falls under the EB-2 category (upon which the employer will file an I-140 petition based on such employment), he or she may interfile to change the underlying category from EB-3 to EB-2.
Overall, restrictions on the number of visas issued each year prevent many EB-3 applicants from obtaining an adjustment of status for many years. In general EB-2 beneficiaries do not have as much of a visa backlog and can often obtain an adjudication of their adjustment of status sooner. However, there must be a visa number immediately available at the time of interfiling as published by the Visa bulletin.
Interfiling and the Priority Date Associated with I-485 Applications
Except in rare cases, the priority date associated with the initial petition filed in support of an I-485 application cannot be transferred to a newly filed “replacement” petition based on a separate immigrant category. However, with employment-based petitions, the original priority date may be transferrable by interfiling.
For example, applicants whose I-485 applications are based on EB-3 employment may use the priority date assigned at the time the employment-based petition was filed when transferring the underlying basis of the I-485 application to EB-2 employment. This occurs when an applicant obtains a new job that falls under the EB-2 category, and an employer has filed a new petition based on EB-2 employment.
If the priority date associated with the EB-3-based I-140 petition is transferred to the newly filed I-140 petition based on EB-2 employment, once that date becomes current for the EB-2 category, applicants will be closer in line to obtain adjustment of status, and therefore, become a lawful permanent resident/green card holder.
A key requirement pertaining to I-485 interfiling is that the applicant remains eligible for an adjustment of status during the pendency of the I-485 application. This potentially means that an employee may be required to show that they remained employed or start a new job in the case of employment-based petitions.
For family-based petitions, the applicant must meet certain eligibility requirements, and specifically, in the case of marriage-based petitions, the applicant and U.S. citizen or lawful permanent resident spouse must remain married during the pendency of the I-485 application. Failure to demonstrate continued eligibility will result in the denial of an I-485 interfiling.
I-485 Interfiling Processing Time
I-485 processing times – without an interfile to convert the underlying basis of the I-485 application – range from one year to a decade, which is often the case for Indian-born EB-3 or EB-2 beneficiaries. In some cases, applicants in a lower priority group, such as the F-4 Family based category from the Philippines, may wait even longer, given there are fewer visas available to applicants in this category each year.
Interfiling can lengthen I-485 processing times. However, the overall process could be shorter if converting the application from one petition category to another allows the applicant to adjust status more quickly (such as with an EB-3 to EB-2 interfiling).
USCIS Has Discretion to Grant or Deny an Interfiling/Transfer Request
No law exists that governs the decision to grant or deny a request to interfile, convert, or transfer the underlying basis for a pending I-485 application to adjust status. Rather, the interfiling process is a policy within USCIS. As such, USCIS has the discretion to grant or deny an I-485 application based on the new interfiling.
In other words, USCIS can use judgment to determine whether one’s I-485 application should be granted based on the new underlying category that forms the basis for eligibility to obtain lawful permanent resident status.
USCIS may consider the following when determining whether to approve or deny an applicant’s interfiling:
- The underlying reason(s) for the interfiling;
- Whether documentation exists to support the interfiling;
- The level of difficulty associated with determining an applicant’s continued eligibility during the pendency of the I-485 application; and
- Whether additional processing steps are needed to transfer the basis of an I-485 application from one immigrant category to another.
What Happens if USCIS Denies an I-485 Interfiling?
If USCIS uses its discretion to deny an applicant’s I-485 interfiling to adjust the underlying basis for obtaining an adjustment of status to become a lawful permanent resident/green card holder, USCIS may require that the applicant file a new I-485 application.
However, USCIS allows applicants to file concurrent I-485 applications that are based on different immigrant categories (such as the multiple employment-based categories).
Additionally, a person whose I-485 application based on employment is pending can file a new I-485 application based on marriage to a U.S. citizen, and doing so does not terminate the originally filed I-485 application.
Because interfiling is not always successful, applicants should consider working alongside an immigration lawyer to ensure the accuracy of filings and compliance with all USCIS procedures.
Interfiling and the Child Status Protection Act (CSPA)
Per the CSPA, the processing time of the underlying basis, such as an I-140 petition, extends a child’s ability to adjust his/her status beyond the age of 21. For example, if it took the government three months to process the I-140 petition, a child has three additional months beyond the age of 21 to adjust his/her status.
A change of the basis may negatively impact a child’s ability to obtain a green card if the child is close to aging out and the new basis has a shorter processing time. While this is a complex topic beyond the scope of this blog, if you are seeking to interfile on your child’s adjustability, you should always request that your attorney evaluate the matter.
Contact Sam Shihab & Associates Today to Discuss Your Immigration Needs
Whether you are seeking to file a new I-485 application or wish to interfile to transfer an I-485 application to a different immigrant category while your I-485 application is pending, you need the help of a qualified Columbus immigration lawyer. At Sam Shihab & Associates, our team of skilled immigration lawyers provides legal representation to clients throughout the United States.
While our law firm represents clients nationwide, we have office locations in Columbus and Dublin, Ohio, and Michigan, and Texas. Do not risk a denial of your petition by acting without the assistance of a Columbus immigration lawyer. Contact our office today by calling (866) 665-0001 or by completing an online form.