During April 8, 2022 USCIS Open Form at AILA’s spring conference USCIS stated its position is that it is not possible to change the basis of a pending I-485 through the interfiling process where the I-140 was approved as an amendment rather than as a new petition. This was an open question where AILA was seeking clarifying guidance from USCIS.

Question to USCIS on Amended Petitions: If an EB-3 downgrade is filed concurrently with a Form I-485 and that EB-3 downgrade is approved as an “amendment” to a prior approved EB-2 petition, can that prior EB-2 petition later be used to transfer the basis of the pending I-485 back to the (now amended) EB-2 petition?

In answering the question on the USCIS Open Forum, USCIS confirmed that when a Form I-140 is approved as an amendment changing from EB-2 to EB-3, there is no longer an EB-2 petition. There is only an EB-3 petition. By contrast, when a Form I-140 is filed as a “new” petition seeking a change from EB-2 to EB-3 and approved, there is then an approved EB-2 and an approved EB-3 petition allowing the change in the basis of a pending I-485. Therefore, it is the agency’s position that because the underlying I-140 petition was amended from an EB-2 to an EB-3 and the original EB-2 no longer exists, the petitioner cannot transfer the adjustment of status to the original EB-2 but must instead file a new EB-2 petition.

A number of AILA members expressed concerns with this interpretation and AILA has stated they will communicate with USCIS on this.