There's Visa Bulletin movement: should you downgrade or interfile?

With priority dates from the Visa Bulletin constantly jumping ahead or retrogressing, a common question from employees and employers is about the idea of “downgrading” and the possibility of “interfiling.” In this post, we will discuss what they are and lay out some of the lesser-known considerations in considering whether to pursue them or not.

What is Downgrading?

Downgrading is when an employer may choose, for strategic reasons, to file a new I-140 in a “lower” preference category for an employee, because the priority dates for that category may be more current than those of the higher category. For example, an employee may have an approved EB-2 PERM, but file an EB-3 petition in order to take advantage of the priority dates being more favorable for EB-3 than for EB-2.

Once the new, downgraded I-140 is on file, the employee would be able to file their I-485 adjustment of status application provided that their priority date is “current” in the downgraded category at the time of filing.

What is Interfiling?

Interfiling is a complicated, but a potentially useful option for employees who have already filed an Adjustment of Status I-485 application with the USCIS and who have an approved I-140 in another preference category. 

For example, an employee might have both an approved EB-2 I-140 and an approved EB-3 I-140. The employee may have filed an I-485 based on their EB-2 I-140, but now the priority date cut offs have switched places, and EB-3 category is current for that employee’s priority date while the EB-2 dates have retrogressed. In this situation, interfiling is an option to request that the pending I-485 be transferred from their EB-2 I-140 to the EB-3 I-140. 

Although interfiling is an option that can speed up the Green Card process, implementing it has remained tricky. This is because interfiling is a discretionary request, governed neither by statute nor by regulation. While USCIS has acknowledged to immigration practitioners that it can transfer the basis of an I-485, it remains up to the discretion of the USCIS officer and, in practice, there are many difficulties (though it should be noted that the USCIS Policy Manual implies that simple transfers between the first three employment-based categories should be accommodated). 

First, a written request to interfile does not receive a receipt number, and it can be very difficult and time-consuming to track the request or to even confirm whether USCIS received it. Multiple written and phone call follow-ups may be required to track the request. The good news is that on January 21, 2022, USCIS released a policy update clarifying that an applicant may be eligible to transfer the underlying basis of their Adjustment of Status/I-485 application, if:

• They have continuously maintained eligibility for adjustment of status;

• The I-485 application based on the original I-140 is still pending;

• They are eligible for the new immigrant preference category; and

• There is a visa immediately available in the new category.

USCIS has also now provided a specific contact point where applicants can write to request that the basis of their I-485 be transferred. Applicants should include a written request to transfer the basis and a completed I-485 Supplement J (if required) to confirm that the job offer from their original I-140 remains valid or to request portability to a new full-time job offer once their I-485 is approved. The agency also noted that applicants who have already submitted an interfiling request do not need to submit a follow-up nor new request based on this change and that currently-pending interfiling requests will be processed by the service centers that received them. Please see the updated information from USCIS here (under the “Transfer of Underlying Basis” tab).

Second, there is no guarantee that the request will be successful and the employee may not know until the I-485 is adjudicated whether the interfiling has succeeded. Finally, retrogression continues to be unpredictable and if the priority dates change again and, for example, EB-2 and EB-3 switch places, a transfer request, if granted, may prevent the applicant from trying to interfile once again to change the basis back. 

Despite these considerations, interfiling can be a helpful and successful means to transfer the basis of an I-485 to another preference category. The only other option to take advantage of favorable visa bulletin movement then is to file a new I-485 based on the second preference category, which requires new fees, documentation, and forms. However, it is important to caveat that multiple I-485 filings can also cause additional administrative confusion for USCIS and ultimately delay approval. 

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Whether or not to choose to downgrade or interfile is a complex and nuanced decision and we encourage all employees and employers considering the process to reach out to ImmiPartner to discuss their options in depth.