Saturday, April 23, 2011

Interfiling I-485 after Sucessfully Porting from EB3 to EB2


Saturday, April 23, 2011 | , , , , , ,

This post explains the current procedure for interfiling I-485 once you have successfully ported your Priority Date from previously approved I-140 and your old I-485 is still pending with USCIS.

Procedure to Transfer Pending I-1485 From Current Approved Underlying I-140 Petition to New I-140 Petition

This posting involves aliens who are waiting for the I-485 applications where the underlying I-140 petition was approved but due to retrogression, I-485 cannot be approved. Most of these cases are EB-3 cases. When the same alien obtains an EB-2 labor certification approval through the same employer or a different employer and the visa number is available for the EB-2 for him or her, he should be eligible for filing another I-485 application based on the visa number available EB-2 I-140 petition. This can be achieved either by concurrent I-140/I-485 filing or if the new EB-2 I-140 has already been approved, by filing of stand-alone I-485 application. However, in the foregoing situation, the Pearson Memo of 2000 allows the alien to transfer the pending I-485 application from the existing underlying approved I-140 petition to a new EB-2 I-140 petition such that the alien does not have to file another I-485 application to use the second I-140 petition. This is called "Interfiling".


Interfiling Procedure

For this to happen successfully, two conditions must be met:

(1) The existing underlying I-140 petition (most likely EB-3) must have been approved before the I-485 transfer is requested.

(2) Secondly, the visa number must be "current" for the new I-140 petition (most likely EB-2) before the I-485 transfer is requested. As long as the PD is current, the pending I-485 application that suffer from the visa number retrogression can be transferred to the next I-140 petition.

According to the USCIS, people should take the following procedure to request such transfer of pending I-485 application from one I-140 petition to another I-140 petition:

  • Request for Transfer of Pending I-485 Application to a Newly Filed I-140 Petition That Has Priority Date Current: In this situation, he/she is filing a new I-140 petition (probably EB-2 with visa number "current") with the agency to transfer the pending I-485 application and attach it to the new I-140 petition. The USCIS states that if he/she files such new I-140 petition, he/she should use "large, bold print in the cover letter or with a separate, brightly colored cover page and notation 'Inter-file I-140 with Pending I-485' and include the Receipt/File Number of Pending I-485 Application, both on the Envelope and Cover Letter."
  • Request for Transfer of Pending I-485 Application to Already Approved New I-140 (most likely EB-2 category): USCIS asks to print the cover sheet on brightly colored paper, and submitting it with a cover letter providing the following Information:
  • Name of 485 applicant
  • Name of I-140 petitioner (employer)
  • I-485 Receipt Number
  • "A" Number of the 485 applicant
  • Prior I-140 petition (1) Receipt Number, (2) Filing Date, and (3) Approval Date+ New I-140 to be inter-filed
  • Statement requesting new I-140 be inter-filed with the pending I-485 application.
These procedures may be particularly helpful to individuals whose has recently ported from EB3 to EB2 and would like to send an interfile letter on their own to transfer pending I-485 application to newly approved I-140 cases.


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17 comments:

Anonymous said...

If same company is filing the new EB2, have heard that one cannot use the experience gained from the same company in filing the new Perm Application. Is this correct?

CM said...

Yes you are right, experience gained at a same employer cannot be used for the newly qualified EB2 job. You would need to have that experience before joining the same company. Many individuals do suggests that the progressive experience can be used but again this is debatable. If an individual was trained by a company in EB3 job to make him eligible for EB2 job, can an American citizen be trained too.

But suppose if your company is a big conglomerate that has facility all over US and if each facility has it's separate Employer ID Number (FEIN), experience gained at one facility can be used towards newly qualified EB2 job at new facility (assuming you were transferred).


Anonymous said...

If same company is filing the new EB2, have heard that one cannot use the experience gained from the same company in filing the new Perm Application. Is this correct?

Yeshneeth said...

Thank you very much explaining us the procedure to interfile existing I485 with a newly approved EB2 I140. I have prepared a letter as explained but am not able to find the address to which I should mail the letter to. MY I485 and I140s(EB2 and EB3) are with the Texas Service Center. Can you please give me the address if you know it.

CM said...

Here are the address for TSC

Mailing Address:

USCIS, Texas Service Center
P O Box 279030
Dallas, TX. 75227

Address for Courier Delivery:

USCIS, Texas Service Center
4141 N. St. Augustine Road
Dallas, TX. 75229

CM said...

Here are the address for TSC

Mailing Address:

USCIS, Texas Service Center
P O Box 279030
Dallas, TX. 75227

Address for Courier Delivery:

USCIS, Texas Service Center
4141 N. St. Augustine Road
Dallas, TX. 75229

Ravi said...

I have my new EB2 I-140 approved with my old EB3 priority date (March, 2004) and I have opened up a Service Request to interlink my new 140 with my pending 485.

Do I still have to send a interfile letter (as per one of the level 2 CSR it's not required and the other said it's required), also where do I send it, I mean my 485 is pending at TSC but my 140 was approved at NSC.
Can you also please post the NSC address to send the interfiling letter.

Thanks a bunch for your response.

CM_USNonImmigrants said...

Personally no harm in sending letter or email. It will be helpful. I think usually TSC will handle your case. You can try emailing interfile letter to tsc.ncscfollowup@dhs.gov

BTW Nebraska mailing address is

Mailing Address:
USCIS, Nebraska Service Center
P O Box 87103
Lincoln, NE. 68501-7103

Address for Courier Delivery: -
USCIS, Nebraska Service Center
850 S. Street
Lincoln, NE. 68508

Sunil said...

Could you please provide some info with my case..... I have two
I-140 approved under EB2 and EB3. My EB2 is approved with priority date Oct 2006 from my previous employer and EB3 approved with priority date Feb 2010 from my current employer. I have the same A# number issued for both I-140 approvals. I did not file my 485. My question is since my EB2 date is current can i apply for 485 based on Pearson memo?

vagav1sk said...

Need Advice....
My case... I hae EB2 approved from my previous employer with priority date Oct 2006 (Which is current based on my nationality). I have EB-3 with priority date feb 2010. approved from my current employer. I did not file for 485 yet. Based on the above your comments regards Pearson Memo can I apply for 485? Your comments and suggestions are highly appreciated.

CM_USNonImmigrants said...

You will not be able to use your EB3 petition to file for AOS. In order to use Pearson's memo your current job should be EB2 qualified job or your past employer should be willing to rehire you on gc approval and can provide your valid job offer letter now to file AOS.

CM_USNonImmigrants said...

Other way you can use that EB2 approved I140 to retain PD for new EB3 petition.

Shravan said...

Hi,

I need help with my situation here.
My new EB2 140 has been approved last week. When applying for this new EB2 140, my Attorney updated USCIS with my pending 485 and old EB3 140 (PD may 2006) info and requesting them to port my old PD to the new 140 category making my 485 current. Since I dont have the actual approval copy yet (Not sure if my Emp/Attorney will ever give me this), I dont know if the new 140 got the old 140s PD.
Talked to my attorney about interfile. He asked me to wait for the actual approval notice and said he would charge $700 to send interfile letter.

Here is what I did so far to make sure my 485 is linked with new 140's category and old 140's PD.
1) Called USCIS toll free today, got tranfered to Level2 CS. Agent couldn't see my 485 category so opened an SR and mentioned that I should expect a response by Dec 2nd. And mentioned that unless a new 140 approval notice with interfile letter is sent most likely they wont pickup my 485.
2) My wife called USCIS to follow up on her 485 (derived/dependent). Level 2 agent pretty much did the same thing and opened an SR for her. But when asked about sending formal interfile letter, she couldnt confirm anything.
3) Sent emails to ebudpate and tsc followup ids with old 140, new 140 and 485 info. Asking them to capture the old PD.

Questions:
1) Since I have opened SR, sent emails and Attorney upalready informed USCIS to use my old PD, do I need to still send formal interfile request?
2) If Yes, can I send the letter my self? Unless its required, I do not want to spend another $700.
3)Is there is disadvantage for sending letter myself?
4) Is there is any additional noticeability/authority if Attorney sends it?
5) If I have to send the letter myself, do I need the new140 approval notice? As I said not sure if my attorney gives me this even if he agrees to give, it will be atleast 2 weeks to actually get it.


I am little confused here.Greatly appreciate any guidance.

Thanks,
Shravan

CM_USNonImmigrants said...

1) I will still send infertile letter. Wait for few more days and see if they linked it if not send it.
2) sending on your own should be fine.
3) no disadvantage. Why not save money.
4) no advantage
5) new I-140 approval will be needed. You may get it through FOIA but that will take time. Other option you can try is take info pass and ask IO over there to link your case. Else See if your attorney can give you scanned or copy of I-140 approval that will suffice for interfiling.

Shravan said...

Thanks for your response and precisely addressing all questions.
Update - I got new 140 approval notice copy. It has same A# as my 485 and PD from my old 140. Does this mean its already interfiled? Also I noticed my old 140 approval has a different A# than my 485. Does this pose any new issues? Can I still file interfile letter on my own? Do I need to mention this in my interfile letter?

Thanks in advance,
Shravan

CM_USNonImmigrants said...

I would still file the interfile letter on your own. Call USCIS and check with them.

Long_waiting_tired said...

Hello,

First of all I must thank you for your great service to the immigrant community!

My original I-140 petition was filed in EB3 category with a PD of August 2003. The I-140 (EB3) was approved in 2007 and I filed 485s for myself and my family (spouse and two children) in July 2007 when all PDs became current.

After waiting 9 yrs (and losing faith in the advice I was getting), I filed a EB1A (extra-ordinary ability) petition by myself (without an attorney) this January and received approval a couple of days ago. The approval has ported my August 2003 PD to the current filing therefore my case is current based on Processing times at NSC (485s transferred to NSC from TSC in 2009 or so). In my EB1A I-140 application I listed my spouse and both my children and checked the box that they are all applying for AOS.

In early 2010, USCIS issued RFEs on my 485 and that of my wife and children. In my case the RFEs were regarding submittal of Form 325A (biographical information),  documents to establish my identity, birth certificate, supplement to form I-693, Employer Verification, and my employment authorizations. In my wife's case the  marriage certificate was regarding proof of identity and marriage certificate to prove relationship to main applicant. In my children's cases the RFE requested birth certificates in the correct format. Responses to these were provided to USCIS and were received in time and the web-site till date states the status - "Response to request for evidence under review".

I have a few questions:
1. Since my EB3 PD has been ported to my EB1 approval, do I need to file anything with USCIS to request approval of my 485s? 2. If I need to interfile, can I do that on my own or am I tied to the attorney that filed my family's 485?
3.If the interfile letter "must" be filed by the attorney that filed the 485s, then I would like to remove my attorney. How can I do that?4. Since there were several queries on the 485s earlier would I be better off filing new I485s?5. How can I find out the current status of my 485 since there is no update in the status from "Response to request for evidence under review" since April 2010?6.I have noticed that there is an email address for the TSC to send in updates or even the interfile letter. Is there a similar address for the NSC?
Thank you.

anne go said...

Great article. Thanks for the info, it’s easy to understand. BTW, if anyone needs to fill out a “I-485 Form ”, I found a blank form here: http://pdf.ac/24FRbE

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