Monday April 11, 2022

BEWARE: CHANGING PREFERENCE CLASSIFICATION (EB-3 TO EB-2) BASED ON AN I-140 PETITION FILED AS “AMENDED” PETITION

by Rabindra Singh

In January 2022, United States Citizenship and Immigration Services (USCIS)  posted an alert advising certain Adjustment of Status (AOS) applicants to consider upgrading from EB-3 to EB-2 preference classification. USCIS also posted information on its website facilitating the transfer of underlying basis of Form I-485 to a different employment-based immigrant category based on another Form I-140.

USCIS recently confirmed to  American Immigration Lawyers Association  (AILA) that it is NOT possible to change the basis of a pending I-485 through the interfiling process where the I-140 was approved as an “amendment” rather than as a new petition.

Question to USCIS on Amended Petitions: If an EB-3 downgrade is filed concurrently with a Form I-485 and that EB-3 downgrade is approved as an “amendment” to a prior approved EB-2 petition, can that prior EB-2 petition later be used to transfer the basis of the pending I-485 back to the (now amended) EB-2 petition?

In answering the question,  USCIS confirmed that when a Form I-140 is approved as an amendment changing from EB-2 to EB-3, there is no longer an EB-2 petition. There is only an EB-3 petition. By contrast, when a Form I-140 is filed as a “new” petition seeking a change from EB-2 to EB-3 and approved, there is then an approved EB-2 and an approved EB-3 petition allowing the change on the basis of a pending I-485. Therefore, it is USCIS’ position that because the underlying I-140 petition was amended from an EB-2 to an EB-3 and the original EB-2 no longer exists, the petitioner cannot transfer the adjustment of status to the original EB-2 but must instead file a new EB-2 petition.

HSD Immigration will continue to monitor  this and other issues related to the transfer of underlying basis issues. We will provide any updates, as necessary.

If you have any questions about this recent development or need assistance with any type of immigration matter, including AOS application filings, please contact HSD Immigration via phone [(312) 291-1234] or email [rsingh@hsdimmigration.com].

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