Changing the Underlying Basis in an INA §245(i) Case

What is transfer of underlying basis?

A pending Form I-485 is filed based on a particular immigrant category or petition.

Sometimes another immigrant basis becomes more favorable or more secure while the I-485 is pending.

USCIS gives examples such as:

• An employment-based applicant later marrying a U.S. citizen;
• A family-based applicant later obtaining an employment-based petition;
• An applicant moving between employment-based preference categories;
• A special immigrant applicant later obtaining a family or employment petition; or
• An applicant later becoming a Diversity Visa selectee.

The grandfathering filing and underlying adjustment basis are not the same thing

This distinction is especially important in INA §245(i) cases.

Consider:

1. An employer filed a qualifying labor certification for the applicant in 2000;
2. The filing made the applicant grandfathered;
3. That employer disappeared decades ago;
4. The applicant later marries a U.S. citizen;
5. The U.S. citizen files a new Form I-130; and
6. The applicant uses the old labor certification for §245(i) grandfathering and the new I-130 as today's immigrant basis.

Common transfers in §245(i) cases

USCIS requires continuity of adjustment eligibility

This is one of the most important transfer rules.

USCIS states that there must be no break in the continuity of the applicant's underlying eligibility to adjust before the transfer request is submitted.

The date USCIS receives the transfer request controls for this purpose.

The replacement basis should therefore be established and designated before the original basis ceases to support adjustment.

The Form I-485 must remain continuously pending

USCIS cannot transfer an adjustment application that has already reached a final decision.

Transfer is unavailable after:

• Approval;
• Denial;
• Withdrawal; or
• Another final disposition of the adjustment application.

Current USCIS policy also states that a transfer cannot be granted after a final decision merely because the agency later reopens or reconsiders the decision.

The applicant must independently qualify under the replacement category

Transfer is not a shortcut around substantive immigrant-category requirements.

The applicant must submit evidence showing eligibility for the new basis.

Depending on the category, that can include:

• A bona fide qualifying family relationship;
• An approvable Form I-130;
• An approvable Form I-140;
• Labor certification where required;
• Extraordinary ability evidence;
• NIW eligibility;
• A qualifying job offer;
• Special immigrant eligibility; or
• Other category-specific evidence.

A visa must be immediately available under the new basis

For numerically limited categories, current USCIS policy looks to visa availability on the date the transfer request is filed.

That date—not the original I-485 filing date—controls whether an immigrant visa is immediately available for the requested transfer.

See Visa Availability for Adjustment of Status.

Changing the underlying petition does not automatically transfer the old priority date

USCIS policy explains that priority dates generally belong to the immigrant petition that generated them.

When the adjustment basis changes, the replacement petition's priority date generally controls unless immigration regulations independently permit priority-date retention.

Employment-based cases can sometimes retain an earlier priority date under 8 C.F.R. §204.5(e).

The transfer request must be made in writing

Current USCIS policy requires the applicant to make a written request asking USCIS to transfer the pending adjustment application to the new basis.

The request should clearly identify:

• Applicant's full name;
• A-Number;
• Pending Form I-485 receipt number;
• Original underlying petition;
• Replacement petition;
• New immigrant category;
• Basis for continued §245(i) eligibility where relevant;
• Visa availability; and
• Supporting documentation.

Is a new Form I-485 required?

Generally no.

USCIS policy provides that transfer of underlying basis generally does not require:

• A second Form I-485; or
• A second ordinary I-485 filing fee.

The objective is to preserve the continuously pending adjustment application.

Can the replacement immigrant petition still be pending?

Sometimes.

USCIS distinguishes categories that allow concurrent filing from those that do not.

A grandfathered applicant can retain §245(i) after changing the current immigrant petition

INA §245(i) grandfathering is generally alien-based once properly acquired.

The applicant therefore does not lose grandfathering merely because the pending I-485 transfers from:

• One I-130 to another;
• An I-130 to an I-140;
• An I-140 to an I-130;
• One employment preference to another; or
• Another qualifying current immigrant basis.

What if the pending I-485 was not originally filed under §245(i)?

USCIS expressly addresses this situation.

If the applicant originally filed the pending I-485 outside §245(i) but a transfer now requires §245(i), the applicant must:

• File Supplement A to Form I-485;
• Pay the additional $1,000 statutory sum unless exempt; and
• Establish all §245(i) grandfathering and adjustment requirements.

By contrast, if the applicant already filed under §245(i) and paid the $1,000, USCIS states that the sum need not generally be paid again when the pending case is transferred while continuity is maintained.

See Form I-485 Supplement A and the $1,000 §245(i) Fee.

Fraud in the original adjustment basis can defeat transfer

USCIS policy imposes an important limitation where the original adjustment application was supported by a petition determined to have been fraudulent or based on willful misrepresentation.

USCIS treats the principal applicant in such a case as never having been eligible for adjustment under that basis, which prevents the applicant from satisfying the continuity requirement.

The same problem can affect derivative applicants whose adjustment eligibility depended on the principal.

The new basis can expose the applicant to adjustment bars or inadmissibility grounds that did not apply before

Changing categories can change the exemptions available to the applicant.

For example, a person adjusting as an immediate relative of a U.S. citizen may be exempt from certain §245(c) bars. If that person transfers to an employment-based category, those immediate-relative exemptions no longer apply.

In a properly grandfathered §245(i) case, §245(i) may overcome many ordinary §245(c) problems. But independent inadmissibility still must be reviewed under the new basis.

Derivative adjustment applications require separate transfer analysis

Current USCIS policy requires the principal applicant to maintain eligibility through the transfer request and the qualifying relationship between the principal and derivative to continue.

Problems arise if:

• The principal loses eligibility;
• The marriage ends;
• The derivative otherwise loses the qualifying relationship;
• The principal transfers to a category that does not permit derivatives; or
• The derivative's visa eligibility changes.

A derivative with an independent immigrant basis may potentially request transfer to become a principal adjustment applicant if the transfer requirements are otherwise satisfied.

Employment-based transfers

Employment-based adjustment applications frequently involve transfer between:

• EB-3 and EB-2;
• EB-2 and EB-1;
• PERM-based EB-2 and NIW;
• Employer-sponsored and self-petition categories; or
• Different employers with different I-140 petitions.

Relevant questions can include:

• Priority-date retention;
• Visa Bulletin availability;
• Whether concurrent filing is permitted;
• Whether a new job offer is required;
• Whether Supplement J is required;
• Whether INA §245(k) or §245(i) is needed;
• Whether AC21 portability applies; and
• Whether the replacement petition is pending or approved.

Transfer of underlying basis is not the same as AC21 job portability

INA §204(j) portability allows specified employment-based applicants with qualifying approved petitions and I-485 applications pending for 180 days or more to move to a same or similar occupational classification without replacing the underlying petition in the ordinary sense.

A transfer to a new Form I-140 is different.

USCIS has discretion whether to grant the transfer

Even when the threshold requirements are met, transfer of underlying basis is discretionary.

USCIS may consider:

• Reason for the request;
• Completeness of evidence supporting the new basis;
• Availability of the relevant petition files;
• Difficulty determining continuing eligibility;
• How much adjudicative processing has already occurred;
• Jurisdiction issues;
• Processing delays created by the transfer; and
• Other case-specific considerations.

Transfer-of-basis checklist

Frequently asked questions