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Transfer of Form I-485’s Underlying Basis

What is the Transfer of Form I-485’s Underlying Basis?

Certain Form I-485 adjustment of status applicants may prefer to have the pending application based on a particular immigrant category considered under another category (transfer of Form I-485’s underlying basis).[1] An applicant who is eligible to such transfer may request USCIS for the transfer. USCIS has a discretion to determine whether to grant the request based on several factors, as discussed below.

Who is Eligible for the Transfer of Form I-485’s Underlying Basis?

To be eligible for the transfer of the underlying basis, an applicant must satisfy the following requirements:

1. Applicants Maintain Eligibility to Adjust Status Based on the Original Underlying Petition

To transfer the adjustment application from one basis to another, an applicant must maintain eligibility to adjust based on the underlying petition up until he/she submits the transfer request. USCIS reviews whether the applicant has maintained the eligibility until the day of the transfer request.

If USCIS considers that the applicant has failed to maintain the eligibility, it will deny the transfer request. Examples include when an applicant divorced the petitioner who filed an approved marriage-based petition for the applicant.

To maintain their eligibility to adjust status based on the original category, the applicants must satisfy the following conditions:

The original underlying petition must be valid up until the replacement petition is properly filed and designated as the new basis for the pending adjustment application. That is, if the original petition is withdrawn, denied, or revoked before such proper filing and designation, USCIS will deny the transfer.

Furthermore, a certain new basis requires that the underlying petition first be approved before filing an adjustment application. In that case, USCIS will deny a transfer request unless it approved the new petition before the applicant makes the request.

Additionally, USCIS may determine that the original adjustment applications have been filed fraudulently or with willful misrepresentation. In that case, USCIS considers adjustment applicants or the beneficiaries to have never been eligible for adjustment of status. If USCIS denies an adjustment application due to fraud, USCIS will deny any accompanying derivative applicant’s application.

2. Adjustment Application Has Been Pending

Applicants may transfer the adjustment application if it continues to be pending. USCIS will not grant transfer of underlying basis if a final decision has been made on an adjustment application. A final decision has been made when the application was granted, denied, or withdrawn. This applies regardless of USCIS’ reopening or reconsidering the final decision.

3. Applicant is Eligible for the New Category

In filing a request of transfer to a new basis, an applicant must provide evidence of eligibility for the new underlying category. Generally, an applicant does not need to file a new adjustment application except for a certain type of adjustment. Still, the applicant should treat the transfer request as if it were a new filing. They should provide the necessary documentation to establish eligibility for the new adjustment category.

An applicant who is barred from adjustment of status or found inadmissible may not adjust status. Accordingly, the officer will consider whether the applicant seeking to transfer the Form I-485’s underlying basis is subject to inadmissibility grounds or adjustment bars under the new basis. For example, special exemptions from certain adjustment bars apply to immediate relatives. However, if the applicant seeks the transfer of its basis from a family-based petition based on the immediate relative relationship to an employment-based petition, the special exemptions will no longer apply to the adjustment of status. In such cases, an officer may exercise discretion to deny the transfer request.

4. Immigrant Visa is Immediately Available

An immigrant visa must be available for the new category when an applicant requests a transfer of the adjustment application. Accordingly, to transfer the basis to the new category that involves preference classification, the applicant must be the beneficiary of a pending or approved visa petition for which an immigrant visa is available. An immigrant visa must be available on the date the transfer request is filed. The controlling date is not the date on which a petitioner filed the initial petition supporting the adjustment application.

Can I Retain the Earliest Priority Date in Determnining the Immigrant Visa Availability?

A priority date for adjustment of status is not transferable from one petition to another except certain circumstances. That is, the priority date of the new underlying petition generally attaches to the pending adjustment application. However, if eligible and the transfer of the underlying basis occurs within each of the following cases, the applicants may retain the earliest priority date of the underlying petitions:

  • Employment-based 1st, 2nd, and 3rd preference cases;
  • Family-sponsored cases filed by the same petitioner for the same beneficiary for the same preference classification; and
  • Family-sponsored cases where an abused spouse or child beneficiary of the abusive petitioner subsequently filed a self-petition (or a new self-petition based on the relationship to the same abusive U.S. citizen or lawful permanent resident).

5. Officer Exercises Discretion

An officer exercises discretion in determining whether to grant or deny a transfer request. An applicant should not assume that the transfer requests will be granted, except for simple transfers between the employment-based first three preference categories.

In addition to the general eligibility requirements, an officer may consider the effects of additional processing time required to gather evidence for the applicant’s new claim. Furthermore, an officer may consider:

  • Reasons for the request;
  • Whether supporting documentation is available;
  • Degree of difficulty in obtaining necessary receipt files from other USCIS offices;
  • Degree of difficulty in determining whether the applicant continuously maintained eligibility from the first underlying petition; and
  • Extent of processing steps already taken on the adjustment application.

USCIS may deny the requests that involve jurisdiction constraints or difficulties. USCIS may also deny the requests that would greatly lengthen the adjustment application’s processing time.

6. Other Consideration

Transfer to INA 245(i) as New Underlying Basis[2]

If an applicant whose original adjustment application was not based on the provisions of INA 245(i) is seeking a transfer to a basis which qualifies under INA 245(i), the applicant must pay the additional $1,000. Such applicants also must file Supplement A to Form I-485, Adjustment of Status Under Section 245(i).

Special Programs Containing Filing Deadlines

Certain programs set a statutory deadline for an applicant to apply for adjustment of status.[3] And some applicants might seek to transfer the basis of an adjustment application to one of these special programs. In that case, they would have to make the request by the program’s filing deadline.

What are the Requirements for Filing the Transfer Request?

In general, an applicant requesting a transfer of the underlying basis does not need to file a new adjustment application or filing fee. Still, if the new basis requested is INA 245(i), such applicants must pay additional $1,000. They must also file a Form I-485, Supplement A.

An applicant must request in writing that USCIS transfer the applicant’s pending adjustment application from one basis to another. If an applicant verbally requests the transfer, the applicant should sign and date a written statement to that effect.

What are Other Considerations?

USCIS may allow the applicant to transfer the basis of a pending adjustment application regardless of whether the new underlying petition has already been approved or is pending. The applicant must clearly designate in writing which petition serves as the new basis of the adjustment application.

If applicants can file concurrently:

If applicants can concurrently file the new underlying petition and an adjustment application, applicants should:

  • Submit the new petition with a signed letter requesting the transfer of his or her pending adjustment application to the new petition. Include a cover sheet (preferably highlighted with colored paper) stating, “REQUEST FOR TRANSFER OF PENDING FORM I-485 (CASE #) TO ENCLOSED PETITION.”
  • Include a copy of the adjustment application’s receipt notice.
  • Also include evidence of eligibility for the new immigrant category in support of the transfer request. Applicants do not need to file a new adjustment application or fee, except for transfer to INA245(i). 

If applicants cannot file concurrently:

Applicants should generally wait until USCIS approves the new petition before submitting a signed letter requesting the transfer of the adjustment application. Applicants should submit the letter with the other documentation mentioned above. 

If USCIS grants the transfer request, the original petition no longer supports the adjustment application even if USCIS approves it. An applicant must request the transfer sufficiently ahead of the time of adjustment application’s adjudication. USCIS will deny transfer requests received on or after the date of the adjustment application’s final adjudication.

Portability Provisions – Transfer Request Resets Adjustment Application’s Pending Period

The portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) allow certain adjustment applicants with (ultimately) approved employment-based immigrant visa petitions in the 1st, 2nd, and 3rd preference categories to change jobs and employers if:

  • The adjustment application has been pending for 180 days or more; and
  • The applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed.[4]

Transferring the basis of an adjustment application resets the adjudication clock for purposes of portability eligibility. That is, an employment-based applicant who requests transfer of the adjustment basis to another employment-based category must wait for 180 days or more after making the transfer request to use the portability provisions.

Physicians Under National Interest Waiver

USCIS may grant a national interest waiver (NIW) to physicians who have worked or agree to work full-time in a clinical practice for a certain period of time (mostly 5 years) in a designated underserved area.[5]

Such physicians are not eligible for the AC21 portability. However, physicians with an approved immigrant petition based on NIW may change employers or self-employed. In doing so, they may also retain the priority date of the initial approved immigration petition. To achieve that, NIW physicians must have a new petitioner file a second petition or self-petition based on an intent to establish their own medical practice.

To maintain eligibility for the NIW, this new employment must take place in a designated underserved area. If USCIS approves the new petition, USCIS matches it with the pending adjustment application. Such NIW physician retains the original immigrant petition’s priority date.

2-year home residence requirement

In some cases, the 2-year home residence requirement applies to physicians with an approved NIW immigrant petition. This requirement restricts the eligibility of such physicians to transfer their adjustment application to a new NIW immigrant petition.

Such physicians may seek a waiver of the 2-year home residence requirement by agreeing to practice medicine full-time for 3 years or more. They must practice medicine in a medically underserved area or a VA health care facility. They may also agree to engage in medical research or training with a federal agency.

USCIS allows the transfer of the adjustment application to a new NIW immigrant petition if the NIW physician has already fulfilled the required service for the waiver of the 2-year home residence requirement or has obtained a waiver in some other way.

Can I Transfer the Underlying Basis more than Once?

If granted, the transfer request is final, and the applicant cannot withdraw the request. Such applicants generally cannot request transfer of the employment-based application to a third basis either. Still, applicants may do so for transfers between the first three employment-based categories.

Can Derivative Beneficiaries Request to Transfer Their Adjustment Applications?

A derivative beneficiary may request to transfer his/her adjustment application if:

  • The principal adjustment applicant must maintain eligibility until the time of the transfer request; and
  • The relationship between the principal applicant and derivative beneficiary must continue to exist.

Such derivative beneficiaries may request to transfer the underlying basis to another principal or derivative category.

Lastly, a certain type of underlying petition for an adjustment application does not allow a derivative’s adjustment application. If the principal applicant transfers his/her adjustment application to such a basis, the derivative loses eligibility to adjust status at the time of the transfer.

Disclaimer


[1] Such occasions include when an applicant who:

  • Filed an adjustment application based on a pending or approved employment-based petition may prefer to adjust based on family-based petition after marrying a U.S. citizen.
  • Filed an adjustment application based on a family-based petition filed by a U.S. citizen spouse may prefer to adjust based on an employment-based petition to avoid the conditional residence requirements.
  • Concurrently filed an adjustment application based on a pending employment-based petition in one preference category may prefer to adjust based on another employment-based petition filed by a different employer in a different preference category.
  • Filed an adjustment application based on a pending or approved special immigrant petition may prefer to adjust based on a subsequently filed family or employment-based petition.
  • Filed an adjustment application based on a pending or approved immigrant petition may prefer to adjust based on the Diversity Visa Program lottery.

[2] INA 245(i) enables certain individuals who are present in the United States to obtain lawful permanent residence when they would not normally qualify to apply for adjustment of status. To qualify, individuals must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Form I-130 or Form I-140) filed on or before April 30, 2001, among others.

[3] Examples include adjustment under Division A, Section 902 of the Haitian Refugee Immigration Fairness Act or the Nicaraguan Adjustment and Central American Relief Act (NACARA).

[4] The AC21 portability is not available for adjustment applicants whose approved immigrant petitions are based on classification as a person with extraordinary ability or national interest waiver. However, such applicants may change employers, including becoming self-employed.

[5] These areas are either a Veterans Affairs (VA) health care facility or in a geographical area(s) the Secretary of Health and Human Services designates as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area.

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