On January 21, 2022, USCIS updated its guidance affecting some employment-based adjustment of status applicants. Specifically, USCIS is now encouraging anyone who would benefit from the process of interfiling to consider doing so.
As a refresher, interfiling is the process of transferring the underlying basis for your adjustment of status from one preference category (such as EB-3) to another (such as EB-2).
Interfiling benefits certain applicants depending on their circumstances. For example, in October-December 2020, major movements in the monthly visa bulletin allowed many applicants who already had an approved EB-2 I-140 petition to “downgrade” to an EB-3 petition and file their adjustment of status concurrently. Now, however, the EB-2 track is appearing to be more beneficial. Accordingly, the applicants who downgraded may now wish to transfer their adjustment of status to their EB-2 petition instead without having to file a new adjustment of status application. The updated guidance from USCIS shows a strong indication that such applicants should receive their long-awaited green card approval, if eligible, before the end of this fiscal year.
The highlights of the update are as follows:
- USCIS notes there are an “exceptionally high number” of employment-based visas available through the end of the fiscal year (September 30, 2022). Accordingly, the agency was prompted to update its policies on interfiling because of excess EB-1 and EB-2 based employment-based visas. Because there are more EB-1 and EB-2 visas to grant, USCIS is indicating that interfiling to an employment-based category with excess visas could accelerate the adjudication process.
- USCIS created a specific filing location just for interfiling requests. This designated location should help streamline the process and more efficiently handle the requests.
- USCIS suggests the interfiling request be made in writing with a complete Form I-485 Supplement J. There is still no way to track the status of an interfiling request made to USCIS, but Receipt Notices will be issued for the Supplement J as confirmation that the package was received by the agency.
While there is still no guarantee USCIS will grant a request to transfer the basis of an I-485 application as the decision is discretionary, applicants waiting in the EB-3 line may benefit from switching to the EB-2 line, particularly in cases where the applicant is no longer “current” under the monthly visa bulletin final action chart for EB-3.
New Interfiling Process FAQs
Because the interfiling process can be confusing and this is fresh guidance from USCIS, we have listed some of the most common questions applicants have when considering whether they should submit an interfiling request in their case.
How long will it take to get approval after interfiling?
This is still a very new system with very little visibility into the process. So, there are no guarantees with interfiling processing times. However, all indications are that USCIS is taking steps to ensure that long-pending adjustments are approved prior to the end of this fiscal year, which ends on September 30, 2022.
I already sent an interfiling request. Should I send another?
The USCIS policy update says an applicant “should not” send another interfiling request if he or she already sent one.
However, there would likely be no harm to sending a second request. More importantly, the process could be quicker now that USCIS has updated the interfiling policy. If you sent an interfiling request without a Supplement J in the past, you may want to consider sending a new request with a Supplement J now that the new policy suggests doing so.
However, you still need to consider your specific circumstances before taking advantage of the new interfiling process. It is especially important to consider whether your child is “aging out” according to the Child Status Protection Act. Further, you also want to consider the 180-day portability rule. Both considerations are discussed in further detail below.
Can I send other documents (birth certificate, medical exams, RFE response, etc.) with my interfiling request?
This is not recommended. The new filing address for interfiling requests is only for interfiling requests. Other materials related to your adjustment should be sent to the service center/field office with jurisdiction over your case, which is listed on your receipt or transfer notices. Sending other materials to this address may delay your case.
I already changed employers and sent a Supplement J. Can I interfile?
It depends. Your new employer must have an I-140 petition to interfile. So, without that I-140, interfiling not possible. If they have filed an I-140 for you new position, then interfiling may still be an option for you.
My priority date is current under filing dates but not final action. Can I still interfile?
No – your priority date must be current under the final action chart in the new basis, according to USCIS policy.
Does interfiling reset the 180-day mark for job portability? If so, when does the clock start – upon receipt or upon granting the interfiling request?
Yes, interfiling does reset the 180-day mark. The job portability clock resets once USCIS receives your interfiling request.
Do I have to be in the U.S. to interfile?
No. You can file if you are abroad!
If I or my dependents use EAD/AP, can I still interfile?
Yes! Interfiling changes the underlying basis of their adjustment of status and should not affect their employment authorization or AP travel abilities (assuming they have a current and valid EAD/AP).
Can I interfile after my child’s CSPA (Child Status Protection Age)-calculated age is over 21?
As briefly discussed above, interfiling if your child’s CSPA-calculated age is over twenty-one is not recommended. The law is not clear so we advocate a cautious approach. There is a possibility that interfiling “un-freezes” your child’s CSPA age, meaning they could be considered over the age of twenty-one if you were to interfile. Thus, they could cease to be considered a “child” for purposes of adjustment and may not be able to adjust with you. If your child’s CSPA age is still under 21 as of the interfiling receipt date by USCIS, interfiling is a viable option for you. If your child is anywhere close to 21 and you are considering interfiling, please discuss the implications with an attorney as this can have major implications on your family member’s ability to adjust status with you.
I am current under final action chart in both EB-2 and EB-3; my adjustment is based on EB-3. Do you recommend interfiling?
If you are close to the edge on EB-3 final action dates, then you may want to consider getting it ready, but you should evaluate this carefully with your attorney. The interfiling guidance from USCIS is still new so we cannot say yet what would be the best option in close cases.
My EB-3 I-140, on which my adjustment of status is based, is still pending. Can I interfile?
Yes, USCIS Policy permits interfiling for adjustment applicants with a concurrently filed and pending I-140.
Interfiling More Generally
If the concept of interfiling is still a new one to you, read below for a quick background on the interfiling process in general. You may also be interested in a previous post explaining the interfiling process in more detail. Because this current post has focused mainly on employment-based interfiling, we will maintain that focus. However, it is possible to qualify for family-based interfiling as well.
There are several general requirements one must meet in order to be eligible for interfiling. Interfiling is the process of transferring the basis of one’s adjustment of status. For employment-based adjustments, this means that interfiling is requesting USCIS change what kind of employment-based visa their adjustment is based on.
To qualify for interfiling, you must have been continually eligible for an adjustment of status. That means there can be no “breaks” in your adjustment eligibility. Your adjustment must be always supported by a petition. For employment-based adjusters, this means you must always have a valid I-140 petition.
An applicant must also be eligible for the transfer of underlying basis they are requesting. Thus, if an applicant is requesting to switch from EB-3 based adjustment to an EB-2 based adjustment, that applicant must have an EB-2 I-140 and their priority date must be current under final action. Please see the month’s current visa bulletin to check your priority date’s eligibility.
Finally, it is important to remember that granting an interfiling request is completely up to USCIS discretion. While traditionally interfiling between employment-based categories is the simplest type of interfiling request, USCIS still has full discretion to grant or deny an interfiling request. However, the recent policy update encouraging qualified employed-based applicants to interfile likely indicates a strong willingness to grant these interfiling requests.
Contact Shihab Burke, LLC, Attorneys At Law Today to Discuss Your Immigration Needs
As always, Shihab Burke, LLC, Attorneys At Law is here to help you navigate the complex waters of immigration rules. 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 Shihab Burke, LLC, Attorneys At Law, 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.