Immigration

Srinivasa Reddy Kandi: Guidance on Green Card Interfiling

February, 15, 2025-05:31

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 Guidance on Green Card Interfiling

The process of obtaining a Green Card (Lawful Permanent Resident status) can be intricate and lengthy. It is well understood that individuals and families may endure waiting periods that span years, if not decades, for their Green Card approval. Certain immigration laws contribute to significant backlogs for specific Green Card categories, and these delays can be further intensified depending on an individual's country of origin.

There are various strategies and methods that can be effectively utilized to hasten the Green Card approval process. One such method is referred to as “interfiling” or a “transfer of underlying basis.” Previously, this approach was largely theoretical, but it has demonstrated success in practice. To bridge the gaps and offer clear guidance for immigrants and legal practitioners, USCIS has released formal instructions concerning “Transfers of Underlying Basis,” commonly known as Green Card interfiling. A “Transfer of Underlying Basis” or “interfiling” pertains to a pending I-485 Green Card petition. For the purposes of this discussion, a “Transfer of Underlying Basis” involves a request to shift your employment-based Green Card from one employment-based immigrant category to another, distinct employment-based immigrant category while remaining with the same employer (“employment-based sponsor”).

If you possess two approved I-140 petitions (one under EB-2 and another under EB-3) from Company A, and your priority date was current for EB-3, you would have submitted your Green Card application based on the EB-3 I-140 approval. However, upon realizing that the EB-2 priority dates are more favorable than those for EB-3, you have the option to request USCIS to shift the basis of your pending I-485 application from the EB-3 category to the more advantageous EB-2 category. By utilizing the "Transfer of Underlying Basis" interfiling process, USCIS will evaluate your I-485 application under the EB-2 preference category rather than the initially filed EB-3 category.

To be eligible for a "Transfer of Underlying Basis," the following criteria must be met:

1. You must continuously maintain eligibility for the original classification that was requested.
2. Your I-485 application must remain pending.
3. You must qualify for the substituted classification that you are requesting.
4. You must have a current priority date under the substituted classification.

It is important to note that USCIS does not impose a fee for this request.

Maintaining eligibility for the original classification does not necessarily mean that you must hold non-immigrant status or a non-immigrant visa to effectuate a transfer of underlying basis. The primary consideration is the status of the underlying I-140 petition—specifically, whether it has been withdrawn or revoked. Additionally, if you have attempted to port your job offer to another employer using an I-485 Supplement J, it may indicate that you have not maintained eligibility for the original classification. In essence, as long as the I-140 that supports your initial I-485 application remains valid, you should not have concerns regarding your eligibility for the original classification.
Eligibility for the requested substituted classification is generally a straightforward procedural issue. In the previously described situation, where I-140 petitions under EB-2 and EB-3 have already been approved by Company A, possessing these approvals typically indicates eligibility for the requested substituted classification.

If one holds an I-140 approval in the EB-2 category, the possibility of obtaining approval in EB-3 is almost invariably affirmative. For further details, please refer to our article on I-140 Downgrades. Many applicants in the EB-2 category can opt to "downgrade" to EB-3 to accelerate their I-485 application process. This downgrade can be accomplished by refiling a previously approved EB-2 I-140 under the EB-3 category or by submitting a Labor Certification intended for EB-2 in the EB-3 category. Furthermore, individuals with approved EB-2 petitions may downgrade to EB-3 using the same Labor Certification, provided it was submitted within the original six-month validity period. Likewise, those with pending or approved EB-2 Labor Certifications can utilize the Labor Certification to file EB-3 petitions. The availability of Premium Processing is contingent upon whether the case is submitted with an original Labor Certification or a copy of an expired one. The timing of the downgrade is critical, particularly in light of potential changes in Visa Bulletin cutoff dates, especially for the EB-2 and EB-3 categories for India. For tailored guidance, individuals are advised to seek counsel from qualified attorneys.

Requests for interfiling are typically uncomplicated. However, a significant concern regarding interfiling requests is that USCIS does not issue receipts for these submissions. According to their recent guidance, USCIS implicitly indicates that the only way to obtain documentation confirming that an interfiling request has been made or accepted is by filing an I-485J from the sponsoring company to validate the job offer.
If an individual has a pending EB-3 I-485 application alongside an approved EB-2, both sponsored by the same employer, they may initiate a request for interfiling with USCIS by mailing a letter. It is important to note that USCIS does not issue a receipt notice for this type of request. Alternatively, one can request interfiling while also submitting an I-485J form from the employer to affirm the continued availability of the EB-2 job offer. In this case, USCIS will provide a receipt notice for the I-485J submission. Consequently, it is advisable to request a Transfer of Underlying Basis concurrently with the filing of an I-485 Supplement J from the sponsoring employer.

It is crucial to understand that a request for Transfer of Underlying Basis is not assured. USCIS will evaluate the request at its discretion. Should the request be denied, there will be no negative impact on the pending Green Card application, which will continue to be processed under its original employment-based classification. While USCIS appears to be open to transfers among the first three employment-based categories, the final decision regarding the Transfer of Underlying Basis rests with USCIS, and there is typically no avenue for appeal. In addition to the previously mentioned eligibility criteria, USCIS will take into account various factors, including the additional time needed to compile evidence for the new claim, the rationale for the request, the availability of supporting documents, challenges in obtaining necessary files from other USCIS offices, the evaluation of continued eligibility based on the original petition, and the progress made on the adjustment application.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.