Practice Pointer: To Interfile or File a New I-485 Application

U.S. Citizenship and Immigration Services (USCIS) received a large amount of EB-3 downgrade I-140, Immigrant Petitions, and I-485, Adjustment of Status applications filed in October 2020. The number of petitions overwhelmed USCIS. The downgrade petition of I-140 consists of asking USCIS to grant EB-3 classification to applicants whose employer previously filed and received approval for their petition based on the EB-2 preference category. Many of these petitions are awaiting adjudication. As a result, in the February 2022 Visa Bulletin, we see the Employment-Based Second category (EB-2) move faster than the Employment-Based Third preference category (EB-3). Now, applicants with EB-3 based Adjustment of Status applications are seeking a visa become available to them under the EB-2 preference category.

ILBSG is providing more information to our clients on the two options they have when they fall into the above-described situation. The first option clients have is what’s commonly known as Interfiling or “Transfer of Underlying Basis.” The second option is filing a new Adjustment of Status based on the EB-2 preference category. Should you interfile or file a new I-485 application? We break it down here.

What is Interfiling?

Interfiling is a process by which an applicant for adjustment of status whose application is based on one immigrant category can have their pending application considered under a different category. Interfiling is not a mandated statute or regulation. Instead, it simply refers to a process asking USCIS to replace an underlying immigrant petition with another immigration petition while an individual’s I-485 application is pending. For example, an immigrant who has applied for an I-485 adjustment of status based on an I-140 work-based petition may request that the I-485 application instead be based on an I-130 petition for an alien relative if their I-140 petition becomes retrogressed while the I-485 application is still pending.

What are the requirements for Interfiling?

The requirements to be eligible for interfiling are numerous and based predominantly on the administrative goal of ensuring efficiency in the immigration system. These requirements are, as mentioned above, not based on any statutes or regulations but are instead based on bureaucratically created procedures. As a result, a decision of whether or not to grant interfiling chiefly depends on the discretion of the officers reviewing the request. Although the chances that the request will be granted may seem promising, granting interfiling is never guaranteed.

The requirements that an applicant must satisfy to be eligible for interfiling are:

The applicant must have always maintained their eligibility to adjust their status to LPR from the time they submitted their original I-485 all the way up to the time they requested their application be interfiled. For example, if the original adjustment of status application was submitted based on a family-based petition of marriage to an LPR and later, the applicant divorces the LPR before marrying a U.S. citizen, the applicant has broken the continuity of his/her eligibility. Therefore, he/she is ineligible to request an interfile if the new spouse files a petition based on the new marriage.
The application itself must also have maintained continuity. For example, the application cannot have been withdrawn at any time nor been denied because the applicant failed to appear for an interview.
The request for interfiling must be submitted with evidence that the applicant is eligible under the new immigrant category. An officer may deny a request for interfiling if they find that the applicant will be transferring from a basis that is exempt from some inadmissibility grounds or adjustment bars to a basis that is not exempt from them. This is one example of the broad discretion that an officer may use in deciding whether or not to grant an interfiling request.
A visa must be immediately available in the new underlying basis. The Applicant’s priority date must be currently based on the Final Action Date Chart regardless of whether USCIS is using the Date of Filing Chart to accept cases in the new underlying basis.
An officer examining a request to interfile may consider additional, discretionary factors in deciding whether or not to grant the request. These factors may result in a denial of an interfiling request if the officer believes they would considerably lengthen the processing time of the application. For example, the officer may consider:
The underlying reason for the request,
The availability/unavailability of documents to support the claim and the effects of additional processing time which the applicant may need to gather evidence supporting their new claim,
The difficulty of determining whether the applicant always maintained their eligibility to adjust their status to LPR,
The difficulty in obtaining the receipt files from other USCIS offices, or
The extent of the processing steps that have already been taken on the I-485 application.

Should you file a new I-485, Adjustment of Status application, or Interfile your EB-2 Approval with pending EB-3 based pending I-485?

Here, we discuss the pros and cons of the interfile or file a new I-485 approach. While interfiling costs are less than filing for a new Adjustment of Status application, applicants do not receive any acknowledgment from USCIS. Filing a fresh I-485 will give you receipt notice to track the case and follow up with USCIS. If in the future, EB-3 starts moving faster than EB-2, applicants who interfiled their pending applications will have difficulty going back to EB-3 basis. Having a pending I-485 application under one category does not prevent you or exclude you from filing a second application under a different category. USCIS will only approve one application and they will ask you to withdraw the other pending application. Therefore, filing a new I-485 is our general recommendation. We generally recommend interfiling if you have an employment-based interview scheduled with USCIS based on your pending EB-3 application and your dates have retrogressed, then interfiling with the officer at the interview will give you a concrete way to ensure USCIS will review your requests.

Adjustment of Status is a key step in your immigration journey, including the option to interfile or file a new I-485. There are many factors to consider before making this decision, and for the optimal outcome, it’s always best to work with an experienced immigration attorney. Please reach out to ILBSG with any questions you may have about interfiling or any other immigration-related issues. Our team of expert immigration attorneys is here to ensure you get the right advice for your specific situation.