Employment Based Interfiling: New USCIS Guidelines to Transfer Underlying Basis


by Brianne Donovan, Immigration Attorney

On Friday, January 21, 2022, USCIS released new guidance for requesting a “Transfer of Underlying Basis.” More commonly, this is known as an “Interfiling Request.”

What is an interfiling request?

An interfiling request refers to the process of asking USCIS to transfer your pending Form I-485 (Adjustment of Status) from one preference category to another. Though an interfiling request can be made for a family-based preference category, this article will focus on the employment-based preference categories.

What are employment-based preference categories?

US immigration law limits the number of employment-based green cards issued each year. The annual allocation of green cards is divided into different preference categories. In addition, no country can take more than seven percent of the overall allocation of green cards, so some countries have their own country-specific limits. For purposes of this post, we’ll be referring to two employment-based categories:

  • Second Preference (EB-2): Members of the professions holding advanced degrees or persons of exceptional ability;
  • Third-Preference (EB-3): Professionals, skilled and other workers.

What is my category and can you be eligible for more than one category?

Your employment-based category depends on a number of factors. You can tell which category your I-140 petition was filed in by looking at the I-140 approval notice. The way that labor certification was drafted (the requirements for the position) and the classification selected on the I-140 petition also affect which category you fall in.

It is possible that you could qualify for multiple categories, even based on the same labor certification. In general, if you qualify for EB-2, you also likely qualify for EB-3. You should speak with a qualified attorney to determine which preference category is most appropriate for you. Generally, EB-2 moves quicker for backlogged countries, but there is no way to affirmatively predict the next month’s visa bulletin or to predict which category will result in a green card sooner

In October 2020, the visa bulletin surprised everyone when the EB-3 category far surpassed the EB-2 category for Indian nationals. Because of this, many individuals who had already filed an EB-2 I-140 petition then filed an EB-3 I-140 “downgrade.” You can read our blog post here for more information.

Why would someone want to request an interfiling request?

Because of the jump in priority dates from EB-2 to EB-3, many individuals filed “downgraded” EB-3 petitions. However, now that the priority dates for EB-2 have moved up, many individuals are wondering how to best proceed. One option is an interfiling request

As mentioned above, interfiling is a possible avenue to request your I-485 be attached to the EB-2 I-140 petition, rather than the EB-3 I-140 petition. However, the decision is entirely at the discretion of the officer assigned to adjudicate your petition.

The potential benefit of an interfiling request is a lower cost. There is no USCIS filing fee for the request, and the legal fee would likely be lower, as compared to filing a new adjustment of status.

Are there any options besides interfiling if EB-2 is current and I qualify?

Filing a new adjustment of status is always an option. The benefit to filing a new adjustment of status is that your case will be assigned a receipt notice and follow an estimated processing time set by USCIS. In addition, if the priority dates flip-flop again, and the EB-3 priority dates are better, you would not need to file another interfiling request. The con would be that filing a new adjustment of status is more expensive, as you would need to submit the USCIS filing fees again.

Finally, you could wait to see if the categories change again or wait for your priority date to be current under your current preference category. Again, please consult a qualified immigration lawyer to determine the best option for your specific situation.

What is the USCIS interfiling process?

Previously, USCIS only had information for requesting interfiling in its policy handbook. The policy handbook did not include a standardized procedure for processing or any specific forms or documents to submit.

The new policy guidance provides a standardized form to submit and a new point of contact for this specific filing request. Most notably, petitions submitted with the newly requested Supplement J Form will receive receipt notices. This new guidance is an exciting development and offers hope that the requests will be adjudicated in a more consistent manner. Because this guidance is new, however, we cannot know for certain what effect this will have on the adjudication of the requests. In addition, no one can predict what processing times will be, and no one can predict whether this process is faster or better than filing a second I-485.

What are the basic requirements for interfiling?

  • Your priority date must be current;
  • There must be no gaps in your eligibility for adjustment of status;
  • Your adjustment of status petition is still pending; and
  • You still qualify for the new immigrant visa category.

To confirm if you are eligible, we recommend speaking with a qualified attorney.

What if I already filed an interfiling request before the USCIS guidance?

The new guidance states, “[i]f you have already submitted a transfer of underlying basis request to a USCIS office, you should not submit a new request to this address. All requests to transfer the underlying basis already received or that will be received this fiscal year at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.”

Please note that this is not legal advice as each person’s immigration circumstances differ. If you are considering interfiling, it is important to speak with a qualified immigration attorney to ensure you’re complying with federal regulations and have the best chance of success with your request.