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What is a transfer of underlying basis request? What factors does USCIS consider when adjudicating the transfer requests for Green Cards?

By February 17, 2020March 16th, 2021Family Immigration, Immigration

Let’s analyze the following scenario: Your employer filed an employment based petition (I-140) and you filed an Adjustment of Status application based on the approved employment-based petition. Your green card petition is currently pending and you now married a U.S. citizen. Can you transfer the pending Adjustment of Status Application from the I-140 category to the I-130 category? The answer is yes. You can file a Transfer of Underlying Basis Request with USCIS.

Does USCIS have to approve a transfer request? What factors does USCIS consider?

Please note that the transfer request is discretionary and USCIS officer looks at the following factors when considering whether to grant or deny the transfer request:

  • Is there any break in the continuity of your underlying eligibility to adjust status? This means that if you do not maintain eligibility up until the transfer is requested, the transfer cannot be granted. Please note that the date the USCIS receives the transfer request is the controlling date to determine whether you maintained eligibility.
  • Is your Adjustment of Status application currently pending? Once a final decision has been made on your Adjustment of Status application (the application was approved, denied, withdrawn), your transfer request cannot be granted.
  • Are you eligible for the substituted category? For example, if you now want to get a green card as an immediate relative of a U.S. citizen, you will have to submit documents like your marriage certificate or documents demonstrating the bona fide relationship etc. You should check the I-485 filing instructions to see what documents have to be submitted for which category.
  • Is there a visa immediately available for the category you now want to use? Please note that visa is always available for immediate relatives of a U.S. citizen. The USCIS Policy manual indicates that a USCIS officer should adjust you under the non-numerically limited category (in this case, as an immediate relative of a U.S. citizen) rather than under a numerically limited category.
  • Does your request include all initial evidence that supports the new basis for adjustment?
  • What are the reasons for request?
  • Is it difficult to obtain receipt files from other USCIS offices?
  • How difficult is it to determine that you maintained eligibility up until the transfer was requested?
  • What processing steps have already been taken on the adjustment of status application?

Please see our blog post that discusses the transfer process when you click here.

Please see our blog post on how to maintain your green card when you click here.

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