USCIS has posted an alert confirming “exceptionally high” availability of EB-2 immigrant visa numbers this fiscal year. To avoid wasting unused visa numbers, USCIS “strongly encourage[s]” Adjustment of Status (AOS or green card) applicants who applied based on EB-3 I-140 “downgrade” petitions to use their original EB-2 petition to “Interfile,” i.e., request to transfer the underlying basis of their AOS application to a different preference category.

Through September 30, 2022, Interfiling requests must be mailed to a newly designated USCIS filing address, and requests based on approved petitions must be accompanied by a Form I-485 Supplement J signed by the employer and the green card applicant. (Form I-485 Supplement J is not required for an Interfiling request based on a pending I-140 petition.) USCIS published these new procedural requirements yesterday on its website. Presumably, the changes are intended to facilitate case tracking since, historically, Interfiling requests were not required to be made on a USCIS form and were not assigned case receipt numbers, and thus were susceptible to being lost in USCIS mailrooms. No filing fee is required to request Interfiling.

Although USCIS accepted many EB-3-downgrade-based AOS applications for processing in FY 2021 under the “Dates for Filing” table in the Department of State’s Visa Bulletin, a priority date must be current under the “Final Action” table before an AOS application can be approved. USCIS’s alert confirms continued rapid advancement of EB-2 Final Action dates in the coming months.
 
Note: If the desired I-140 petition was approved for an entity that no longer exists due to a corporate acquisition, the acquiring entity may be able to preserve the petition by filing an amended I-140 “Successor-in-Interest” petition to reaffirm the validity of the predecessor entity’s job offer. The amended I-140 petition must be filed before the Interfiling request.

G&A is preparing and distributing client reports on all matters affected by this development with specific recommendations for each matter.

If you have any questions about this alert or a related immigration issue, please feel free to contact a G&A attorney.