Chapter 8 - Transfer of Underlying Basis
An adjustment of status applicant whose application is based on a particular immigrant category occasionally prefers to have the pending application considered under another category. Examples include:
- An applicant who originally applied for adjustment based on a pending or approved employment-based petition and later married a U.S. citizen now prefers to adjust based on a family-based petition filed by the new U.S. citizen spouse.
- An applicant who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to adjust under an employment-based category in order to avoid the conditional residence requirements.[1]
- An applicant who applied for adjustment concurrently with a pending employment-based petition in one preference category and subsequently had another employment-based petition filed by a different (future) employer in a different preference category.
- An applicant who applied for adjustment based on a pending or approved special immigrant petition and now wishes to adjust based on a subsequently filed family or employment-based petition.
- An applicant who applied for adjustment based on an approved or pending immigrant petition, but is now a Diversity Visa Program lottery winner.
The decision to grant or deny a transfer request is always discretionary. There are several factors to consider when determining whether to grant a transfer request.
A. Eligibility Requirements
When considering a request to transfer the basis of an adjustment application, the officer should consider the following guidance.
1. Continuing Eligibility to Adjust Status
In order to transfer an adjustment application from one basis to another, there must be no break in the continuity of the applicant’s underlying eligibility to adjust prior to submitting the transfer request. If an applicant does not maintain eligibility up until the transfer is requested, a transfer cannot be granted. The date the transfer request is received is the controlling date for determining whether the eligibility continued, not the date the actual transfer request is reviewed or granted.
| Date | Event |
|---|---|
| May 16, 2010 | An applicant has a family-based petition approved based on marriage to a lawful permanent resident. |
| June 16, 2010 | The applicant applies for adjustment of status based on the approved petition. |
| August 4, 2010 | The applicant divorces his permanent resident spouse. |
| September 23, 2010 | The applicant marries a U.S. citizen. |
| October 1, 2010 | The applicant’s new spouse files a petition for the applicant based on the new marriage. |
| November 10, 2010 | The applicant appears for an adjustment of status interview with a divorce decree from the first marriage, a marriage certificate from the current marriage, and receipt notice of the petition filed October 1, 2010. The applicant requests a transfer. |
In this case, the applicant failed to maintain continuity of eligibility because the first petition approval was automatically revoked at the moment the first marriage was dissolved. Accordingly, the adjustment application cannot be transferred and the applicant must file a new adjustment application for the new petition.
Adjustment Application Supported by Petition or Basis At All Times
The replacement petition must be properly filed and designated as the new basis for the pending adjustment application before the initial petition supporting the adjustment application is withdrawn, denied, or revoked. Additionally, if the new basis requires that the underlying petition first be approved prior to filing an adjustment application, a transfer request will be denied unless the replacement petition was approved prior to the request.[2]
If the petition upon which the pending adjustment application was initially based has been revoked[3] before the applicant makes a proper request for a transfer, then the applicant cannot meet the continuing eligibility requirement. In some cases, revocation of a petition is automatic and takes effect as soon as a triggering event occurs[4]
In other cases, USCIS must follow a formal revocation process before the revocation takes effect.[5] Continuing eligibility ends upon revocation. If the new basis of eligibility is not sought (in other words, the transfer request has not been received and approved by USCIS) before the revocation takes effect, the adjustment application cannot be transferred.
Fraud
If the original adjustment application was based on a petition determined to have been filed fraudulently or with willful misrepresentation, the principal adjustment applicant or the beneficiary of that petition is considered to have never been eligible for adjustment of status and therefore cannot meet the continuing eligibility requirement.
Likewise, anyone whose adjustment application is dependent upon that principal adjustment applicant’s eligibility is also ineligible. If a principal’s adjustment application is denied based on a determination of fraud, any accompanying derivative’s application must also be denied.
2. Continuing Pendency of the Adjustment Application
An adjustment application cannot be transferred from one basis to another if there are any breaks in the continuity of the application, including if the applicant chooses to withdraw the application or the application is denied because the applicant failed to appear for a scheduled interview without sufficient justification.
A transfer cannot be granted once a final decision has been made on an adjustment application, whether granted, denied, or withdrawn, even if USCIS reopens or reconsiders the final decision.
3. Eligibility for Substituted Category
The applicant must provide evidence of eligibility for the new immigrant category in support of the request to transfer to a new eligibility basis. Evidence required can be found on the adjustment application’s filing instructions. The transfer request should be treated as if it were a new filing and the applicant should provide the necessary documentation to establish eligibility for the new adjustment category.
The burden of proof for establishing eligibility under the new immigrant category is on the applicant. An officer does not need to make a full eligibility determination or pre-adjudicate the adjustment application prior to making a decision on the request, even though establishing eligibility may positively impact the decision as to whether to grant the request.
Inadmissibility and INA 245(c) Bars to Adjustment
The officer should consider that an applicant seeking to transfer the basis of a pending adjustment application may become subject to inadmissibility grounds or adjustment bars under that new basis. This could arise when the applicant is transferring from a basis that is exempt from certain inadmissibility grounds or adjustment bars to a basis that is not exempt from the same inadmissibility grounds or bars to adjustment. As a matter of discretion, the officer may deny a transfer request in these circumstances.
| Date | Event |
|---|---|
| May 18, 2011 | An applicant applies for adjustment of status as the spouse of a U.S. citizen after recently getting married. |
| July 23, 2011 | An employer petitions for the applicant. |
| September 3, 2011 | The employer’s employment-based petition is approved. |
| October 21, 2011 | The applicant requests a transfer to adjust status based on the employment-based petition instead of as the spouse of a U.S. citizen. |
In this case, the applicant requested the transfer to avoid the conditional residence requirements. Because the applicant is no longer seeking to adjust as the spouse of a U.S. citizen (immediate relative), the applicant would no longer qualify for the special exemptions from adjustment bars applicable to immediate relatives. As a result, the applicant may become subject to any applicable bars, unless an INA 245(k) exemption applies. An officer may exercise discretion to deny the transfer request in such cases.
4. Visa Immediately Available
When an applicant requests a transfer of the adjustment application from one basis to another, the priority date must be current for the category the applicant wishes to use. In order to transfer an adjustment application to a new basis involving a preference classification, the applicant must be the beneficiary of a pending or approved visa petition which has a visa available.
The date on which the transfer request is filed controls for purposes of determining whether an immigrant visa number is available, not the date on which the initial petition supporting the adjustment application was filed. For example, in order for an applicant who concurrently files an adjustment application with a preference petition filed by Employer A on March 3, 2013 to transfer the pending adjustment application to another preference petition on August 25, 2014, an immigrant visa number must be immediately available on August 25, 2014, under the new basis.
Priority Date
With limited exceptions, a priority date is not transferable from one petition to another.[6]
In general, the priority date of the replacement petition attaches to the pending adjustment application. This is done regardless of whether the priority date is earlier or later than the priority date of the initial petition supporting the adjustment application, except where applicable regulations permit retention of priority dates (allowing for use of the earliest priority date) in certain employment-based 1st, 2nd, and 3rd preference cases.[7]
Choosing Between Numerically Limited Category and Non-Numerically Limited Category
In general, an officer should adjust the applicant under the non-numerically limited category in order to leave a visa preference number available for other immigrants in cases where an applicant is eligible to adjust status under both a numerically limited category and a non-numerically limited category.
5. Exercise of Discretion
Whether to grant or deny a transfer request is a matter of discretion. Except for simple transfers between the first three employment-based categories, the adjustment applicant should not assume that transfer requests will be automatically granted. Other than the general eligibility requirements listed above, an officer may consider the effects of additional processing time required to gather evidence to support the applicant’s new claim. The officer may look more favorably on those requests that include submission of all required initial evidence that supports the new basis for adjustment.
In addition, the officer may consider the following:
- The reason(s) for the request;
- The availability or unavailability of documentation to support the new claim;
- The degree of difficulty in obtaining needed receipt files from other USCIS offices;
- The degree of difficulty in determining the applicant’s continued eligibility from the first underlying petition or basis; and
- The extent of processing steps already taken on the adjustment application.
All of these factors may result in processing delays which may be unacceptable to USCIS or the applicant. Requests that involve jurisdiction constraints or difficulties, or that are projected to greatly lengthen the processing time of the adjustment application, may result in the request being denied.
6. Other Eligibility Consideration
Transfer to INA 245(i) as New Underlying Basis for Adjustment
If an applicant initially filed for adjustment under INA 245(i) and paid the required additional $1000 fee, then the applicant need not pay again when requesting a transfer as long as continuity of eligibility is maintained during the transfer. However, if the applicant’s initial adjustment application was not under the provisions of INA 245(i), and the applicant is now seeking a transfer to a basis which qualifies under INA 245(i), then the applicant must pay the additional $1,000 and file Supplement A to Form I-485, Adjustment of Status Under Section 245(i) (Form I-485, Supplement A).
Special Programs Containing Filing Deadlines
Certain programs[8] require that an applicant apply for adjustment of status by a given statutory deadline. In order to transfer the basis of an adjustment application to one of these special programs, the applicant would have to make the request no later than the filing deadline of the special program.
B. Filing Requirements
1. New Application or Fee Not Required[9]
Generally, no new adjustment application or filing fee is required when requesting a transfer of the underlying basis. As noted above, however, a request to convert to an INA 245(i) adjustment would require payment of the additional $1,000 fee and filing of Form I-485, Supplement A.[10]
2. Request Must Be Made in Writing
The adjustment applicant must request in writing that USCIS transfer the applicant's pending adjustment application from one basis to another.[11]
If an applicant verbally requests transfer of the basis of a pending adjustment application, for instance, during the adjustment interview, the applicant should sign and date a written statement to that effect and the officer should place the signed statement into the record of proceeding. The interview could then proceed without further delay provided the applicant remains eligible to immediately adjust under the new classification.
C. Petition Considerations
Prior to adjudication of an adjustment application, USCIS may allow the applicant to transfer a pending adjustment application to a different petition or basis regardless of whether the petition that forms the new basis for the pending adjustment application has already been approved or is pending, if allowable by law or regulation and provided certain requirements are met.[12]
Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition serves as the new basis of the adjustment application. Several steps are required to ensure that the petition that forms the new basis for the pending adjustment application is properly matched with a pending adjustment application.
If concurrent filing is allowed, then transfer applicants are generally instructed to:
- Submit the new petition (with proper filing fee and signature) with a signed letter requesting that his or her pending adjustment application be transferred to the new petition. Include a cover sheet (preferably highlighted with colored paper) stating, “REQUEST FOR TRANSFER OF PENDING FORM I-485 (CASE #) TO ENCLOSED PETITION.”
- Include a copy of the adjustment application’s receipt notice with the new petition filing.
- Include evidence of eligibility for the new immigrant category in support of the transfer request to transfer to a new eligibility basis. A new adjustment application and fee are not required (see INA 245(i) exception above).
If concurrent filing is not allowed, then transfer applicants are generally instructed to wait until the new petition is approved before submitting a signed letter requesting the pending adjustment application be transferred, with the other documentation mentioned above.
Once an applicant makes a request to transfer a pending adjustment application from one basis to another and if the transfer request is granted, the original petition no longer supports the adjustment application. This rule applies even if the original petition is approved. The transfer request must be made sufficiently ahead of the time of adjudication of the adjustment application in order to give USCIS reasonable time to match up the replacement petition with the pending adjustment application. An officer must deny transfer requests received on or after the date the adjustment application is finally adjudicated.
1. Approved Petition to an Approved Petition
The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a different approved petition as the basis for the pending adjustment application.
2. Approved Petition to a Pending Petition
The beneficiary of an approved petition with a pending adjustment application may replace the approved petition with a pending petition as the new basis for the pending adjustment application in certain categories. The new basis must allow for filing of an adjustment application prior to approval of the petition (concurrent filing), or the transfer cannot occur and should be denied.
3. Pending Petition to an Approved Petition
An adjustment applicant with a concurrently filed and pending immigrant visa petition may replace the pending petition with an already approved petition as the basis for the pending adjustment application.
4. Pending Petition to a Pending Petition
An adjustment applicant with a concurrently filed and pending petition may request to transfer the adjustment application to another pending petition, provided that the new basis allows for the filing of the adjustment application prior to approval of the underlying petition.
D. Portability Provisions
The portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21)[13] allow certain adjustment applicants with approved employment-based immigrant visa petitions in the 1st, 2nd, and 3rd preference categories to change jobs and employers if the adjustment application has been pending for 180 days or more, provided that the applicant’s new job offer is in the same or similar occupational classification as the job for which the petition was initially filed. Adjustment applicants are not eligible for portability if their approved immigrant visa petitions are based on classification as a person with extraordinary ability or noncitizen for whom USCIS has waived the job offer and labor certification requirements in the national interest.[14]
If an employment-based applicant requests to transfer the adjustment application to a different employment-based category based on a new Form I-140, the applicant may not utilize the portability provisions, if applicable, until 180 days or more after making the transfer request. The applicant’s new job offer must be in the same or similar occupational classification as the job for which the petition was initially filed. In essence, transferring the basis of the adjustment application resets the adjudication clock for purposes of portability eligibility.[15]
National Interest Waiver Physicians
Physicians, including specialty care physicians who work in a Physician Scarcity Area, with an approved immigrant petition based on a national interest waiver (NIW) may be employed by a petitioning employer or self-employed. These physicians agree to work full-time in clinical practice in either a Veterans Affairs (VA) health care facility or in a geographical area or areas designated by the Secretary of Health and Human Services as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area.[16] NIW physicians are not eligible for portability under the provisions of AC21.
NIW physicians may change employers or become self-employed while retaining the priority date of the initial approved immigrant petition. To do this, NIW physicians with an approved immigrant petition and a pending application for adjustment of status may either self-petition based on an intent to establish their own medical practice or become the beneficiary of a second petition from a different employer.[17] In order to continue to be eligible for the NIW, the new employment must take place in a VA health care facility or in a geographical area or areas designated by the Secretary of Health and Human Services as a Medically Underserved Area, a Primary Medical Health Professional Shortage Area, or a Mental Health Professional Shortage Area.[18] If USCIS approves the new petition (including a self-petition), USCIS matches the new petition with the pending adjustment of status application, and the NIW physician retains the priority date from the initial immigrant petition.[19]
Some physicians with an approved immigrant petition based on an NIW may be subject to the 2-year home residence requirement of INA 212(e). Due to this 2-year home residence requirement and its related waiver, there are additional restrictions on the eligibility of such a physician to transfer his or her adjustment application to a new NIW immigrant petition. Such physicians may seek a waiver of the 2-year home residence requirement under INA 214(l) by agreeing to practice medicine full-time for not less than 3 years in a medically underserved area or a VA health care facility (or engage in medical research or training with a federal agency).[20] This agreement is a contract with a specific health facility or health care organization; if the physician fails to fulfill the terms of that contract, then he or she would again be subject to the 2-year home residence requirement.[21]
An NIW physician may satisfy the requirements to waive the 2-year home residence requirement and the 5 years of service for the NIW at the same time, if the physician’s employment meets the criteria for each. USCIS only allows the transfer of the adjustment application to a new NIW immigrant petition[22] if the NIW physician has already fulfilled the required service for the waiver of INA 212(e) or has obtained a waiver in some other way.
E. Decision on Transfer Request
If the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time except for possible transfers between the first three employment-based categories.
F. Derivative Beneficiaries’ Adjustment Applications
In order to transfer a derivative beneficiary’s adjustment application, the principal adjustment applicant must maintain eligibility up until the time of the transfer request and the relationship between the principal and dependent must continue to exist. If there is a break in either the principal’s eligibility or in the relationship, the derivative’s application cannot be transferred to a new basis. In addition, if the principal transfers his or her adjustment application to another basis that does not allow for derivatives, the derivative loses eligibility for adjustment of status at the time of the transfer and the derivative’s adjustment application must be denied.
In the case of a derivative whose principal continues to maintain eligibility for adjustment and in which the relationship between the principal and derivative continues to exist, the derivative may request a transfer of the adjustment application from one basis to another and is not limited to transferring to another derivative category. For example, an applicant who meets all the other considerations could transfer from applying for adjustment as the dependent spouse of the sibling of a U.S. citizen to applying for adjustment as a principal applicant under an employment-based category.
Footnotes
[^ 2] See Section C, Petition Considerations, Subsection 2, Approved Petition to a Pending Petition [7 USCIS-PM A.8(C)(2)] and Subsection 4, Pending Petition to a Pending Petition [7 USCIS-PM A.8(C)(4)].
[^ 4] See 8 CFR 205.1.
[^ 5] See 8 CFR 205.2.
[^ 6] See 8 CFR 204.2(h)(2) and 8 CFR 204.5(e) for exceptions.
[^ 7] See 8 CFR 204.5(e).
[^ 8] For example, adjustment under Division A, Section 902 of the Haitian Refugee Immigration Fairness Act (HRIFA), Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998), or the Nicaraguan Adjustment and Central American Relief Act (NACARA), Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997).
[^ 9] If, instead of making a transfer request, an applicant files a second adjustment application under a new basis, any fee paid by the applicant should not be refunded. However, if the applicant or the applicant's legal representative was advised by USCIS or legacy INS that a new application and fee were required in order to transfer from one adjustment basis to another, the applicant may request and USCIS may in its discretion approve a refund of any fees paid for the second adjustment application. See 8 CFR 103.2(a)(1). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees, Section C, Refunds [1 USCIS-PM B.3(C)].
[^ 10] See Part C, 245(i) Adjustment, Chapter 4, Documentation and Evidence [7 USCIS-PM C.4].
[^ 11] See “Transfer of Underlying Basis” on USCIS’ Green Card Processes and Procedures webpage.
[^ 12] See Section A, Eligibility Requirements [7 USCIS-PM A.8(A)] and Section B, Filing Requirements [7 USCIS-PM A.8(B)].
[^ 13] See Pub. L. 106-313 (PDF) (October 17, 2000).
[^ 14] See 8 CFR 204.5(e)(5). See INA 204(j). Although these applicants are not eligible for AC21 portability, they are permitted to change employers, including becoming self-employed. Persons of extraordinary ability do not require a job offer, but must show clear evidence that they intend to work in the area of their expertise. See 8 CFR 204.5(h)(5). Noncitizens for whom USCIS has waived the job offer and labor certification requirements in the national interest must file a new Form I-140 if they desire to change employers or establish their own practice. See 8 CFR 204.12(f).
[^ 15] Portability of an underlying employment-based petition should not be confused with the transfer of the adjustment application to a new petition or basis. Applicants who wish to avail themselves of AC21 portability need not request transfer of the adjustment application.
[^ 16] See INA 203(b)(2)(B). See Matter of H-V-P- (PDF), Adopted Decision 2016-01 (AAO Feb. 9, 2016).
[^ 17] See 8 CFR 204.12(f)(1)-(2).
[^ 18] See 8 CFR 204.12(f)(1)-(2).
[^ 19] See 8 CFR 204.12(f)(1)-(2).
[^ 20] See INA 214(l)(1)(D).
[^ 21] See INA 214(l)(2)(B).
[^ 22] A self-petition or a petition filed by a new employer.