An adjustment of status applicant whose application is based on one immigrant category or Immigrant Petition (I-360, I-130, I-526, or I-140) may have the pending I-485 application adjudicated under a different category or Petition. The advantage of interfiling is that there is no need to re-pay any of the filing fees, or redo any of the forms. While interfiling is an option, it does not always work. Interfiling does not exist in a statute or regulation. It is an ad hoc process and matter of policy. USCIS Service centers have stated it is difficult for the Service Center to accommodate the interfiling, and that USCIS has no way of acknowledging the interfiling has occurred, so the only way to confirm is if the case remains pending past the processing times and an inquiry is submitted.
While more expensive, it may be preferable to file a new I-485 application instead of interfiling. A new filing has the advantage of avoiding the challenges of coordinating an interfile request with USCIS, and may be particularly useful if it is hard to predict which IV petition will be current in the near future. If a beneficiary has not maintained nonimmigrant status, they may not be eligible to file a new I-485. You cannot interfile based on the early filing chart and can only file based on the final action chart.
USCIS’s decision to grant or deny a transfer request is discretionary: The majority of interfiling transfers between the first three employment-based categories, tend to be granted. Requests that involve jurisdiction constraints or difficulties, or that may greatly lengthen the processing time of the adjustment application, may result in the request being denied. In exercising their discretion, officers may consider the following:
- The reason for the request.
- The effects of additional processing time required to gather evidence to support the new petition
- The availability of documentation to support the new claim
- The degree of difficulty in obtaining needed receipt files from other USCIS offices
- The degree of difficulty in determining the applicant’s continued eligibility from the first underlying petition or basis; and
- The extent of processing steps already taken on the adjustment application.
If a transfer request is granted, the original petition will no longer support the adjustment application. Keep this in mind if the priority dates are moving back and forth, such as for EB2 and EB3, incase you interfile and the Visa Bulletin changes again. The USCIS Policy Manual states that “if the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time except for possible transfers between the first three employment-based categories. If an employment-based applicant requests to transfer the adjustment application to a different employment-based category, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request.