Our client came from India and has two approved I-140 petitions, one under the EB-2 category, and before that from the EB-3 category. He filed his I-485 adjustment of status application in 2007 when his EB-3 I-140 priority date was current. In 2011, our client got another I-140 approval under the EB-2 category.
Our client retained our office on October 6, 2011 for an interfile request to the USCIS so that his I-485 application may be processed according to the availability of immigrant visas in the EB-2 category. At that point the priority date he had would have been current if based on the EB-2 category, which meant that his green card application would be adjudicated soon.
According to the CIS Adjudicator’s Field Manual Chapter 23.2(I)(2)(L):
“In order to convert an adjustment application to a new basis involving a preference classification, the alien must be the beneficiary of an approved visa petition (pertaining to that new basis) which has a current visa availability date. With limited exceptions, a priority date is NOT transferrable from one preference category to another or from one petition to another.
Note: The request for conversion of the adjustment application is a totally separate issue from the priority date determination. Priority dates for preference visa categories are determined in accordance with the provisions of 8 CFR 204.1(c) and (d) for family-based petitions or 8 CFR 204.5(d), (e) and (f) for employment-based petitions and are generally not transferable. The only exceptions to this general rule are:
• Conversion within the first three employment based categories (sections 203(b)(1), (2), and (3), as provided in 8 CFR 204.5(e)”
Since employment based priority dates for the first three preference petitions are transferable, such cases fall within the “limited exceptions” specified in the CIS manual. This provision suggests that substitutions involving different employment preference classifications are permissible, as it is in our client’s case.
The CIS Adjudicator’s Field Manual, in Chapter 23.2(I)(2), sets forth certain specific rules, including:
(C) The request must be made in writing. Verbal requests for conversion are unacceptable.
(D) There must be no break in the underlying eligibility prior to the conversion request.
Section 23.2(I)(C) and (D) of the Adjudicator’s Field Manual provides that an I-485 adjustment application may be converted from one eligibility basis to another if the request is made in writing and there is no break in the continuity of the underlying eligibility for adjustment prior to submission of the conversion request.
With the above standards cited, our office sent an interfile request to the USCIS Nebraska Service Center for our client and his three dependents. Since our client is the beneficiary of multiple approved I-140 petitions; we requested that the basis of his pending I-485 application be converted to the EB-2 I-140 petition approved on his behalf. We asked the USCIS to interfile our client’s second approved I-140 petition with his pending I-485 application and process his adjustment application, using his EB-3 priority date but according to the availability of immigrant visas in the EB-2 category, to make his I-485 application available for adjudication.
Eventually, on March 16, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application. After a long wait, our client, his wife, and his two children finally became green card holders.
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