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Can I change My Adjustment of Status Application from an Employment-Based Petition (I-140) into a Family-Based Petition (I-130)? What Are the Eligibility Requirements?

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Interfiling is an administrative procedure described in the USCIS Policy Manual.  It is possible for an applicant whose application is based on a particular immigration category (either family or employment based) to have the pending application considered under another category, however, the decision of grant or denial of the transfer is discretionary and depends on several factors. However, once the transfer request is granted, the applicant can no longer withdraw their request or transfer of the Adjustment of status to a third basis.

For example, for the purpose of priority date, if someone applies for adjustment of status (I-485 petiton) on a pending employment-based petition (I-140) but now has an immediate relative and prefers to adjust based on a family-based petition (I-130), they may transfer their underlying petition into a family-based petition if they meet the flowing requirements:

What Are the Eligibility Requirements for Interfiling?

So how can a transfer of an I-485 that initially related to one petition be transferred to another petition.  For a transfer to be granted, the main applicant must maintain eligibility up until they make the request. The date the transfer request is received by the USCIS controls the determination of the continuous eligibility.

  • In the case where the applicant chooses to withdraw their application or do not appear to their interview without enough justification, they cannot transfer their underlying petition. In other words, there should not be any breaks in the continuity of the application. Besides, if a final decision has been made on an adjustment application, the transfer of the underlying petition cannot be granted.
  • The applicant must provide along with the request for transfer all the required evidence of eligibility for the new immigrant category. For example, if someone is transferring from an employment-based petition into a family based, they need to provide all the necessary evidence that proves their eligibility for filing an I-130 petition.
  • when the request for a transfer is filed, the priority date for the category the applicant wants to convert must be current. The date on which the initial petition supporting the adjustment of status application is irrelevant. The date the transfer request is filed controls whether an immigrant visa is available.

What Are the Filing Requirements?

When the applicant meets all the eligibility criteria, they may submit a transfer in writing to the USCIS office with the jurisdiction over the application. Usually, there is no new adjustment or filing fee required. If the applicant initially filed under INA 245(i) and paid the required fee, then they are not required to pay the fee again, however, if it’s the contrary, a request to convert to a INA 245(i) adjustment, they would have to pay the filing fee.

The applicant may verbally request the transfer of an adjustment application during the adjustment interview; however, a transfer application must be requested in writing to the USCIS.

What About My Dependents?

It is possible to transfer a derivative beneficiary’s adjustment application under certain requirements.   First, the principal must maintain eligibility until they make the request of the transfer.   Second, the principal must maintain their relationship with the dependent. However, if the principle transfers their adjustment of status to another basis that does not allow derivative’s adjustment, then the application would be denied.

Please see our blog post discussing the family based petition when you click here.

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