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| In a memorandum issued May 9, 2000 the former INS asked “Can the adjustment application, balled on an approved immigrant petition (either 1130 or 1-140) with a current priority date, be transferred to a subsequent immigrant petition that is approved with a current priority date?” The answer provided was “In many instances, the answer is yes.” That simple answer, however, is not as comprehensive as it appears at first glance. In the years following the issuance of the May 9, 2000 “Pearson memo,” both the INS and the CIS have carefully avoided expanding upon it. When questioned as to whether an adjustment applicant can “upgrade” to a higher preference classification with a subsequently filed I-140, they have consistently said “go back and read the Pearson memo” and have refused to comment further. The Pearson memo speaks of “unfair bumping up in the line” of adjudications and this clearly remains a concern with the CIS. The Pearson memo allows substituted petitions when “the priority date is current at the time the I-485 is transferred.” That same memo, however, conditions such transfers with the language: “If the transfer request is credible and justified, the alien is not gaining a benefit that he or she is not eligible for, especially when no change in the visa category is involved.” This seems to suggest that substitution is not allowed in cases involving different preference classifications. Looking to the CIS Adjudicator’s Field Manual only adds to the confusion. There, in Chapter 23.2(I)(2)(L) we find: “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 this instruction. This provision suggests that substitutions involving different preference classifications are permissible. Unfortunately, there is no clear statement, one way or the other. The only thing that is clear is that the CIS policy statements on this subject are anything but clear. The procedures for effecting a conversion are somewhat clearer. The CIS Adjudicator’s Field Manual, in 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. · (I) “If the petition upon which the pending I-485 was originally based has been revoked (under section 205 of the Act) before the alien makes a legitimate request for conversion, the alien does not meet the continuing eligibility requirement discussed above.” This last provision is somewhat controversial in that it appears to ignore the specific command of the AC21 legislation providing for continuing validity of an I-140 petition if the accompanying I-485 has been on file for more than 180 days. In practice, the CIS has been all over the map on this issue. In many instances, CIS adjudicators have refused to allow the substitution of a new I-140 in a different preference category for a pending AOS application. In others, they have permitted substitutions. There does not appear to be any way to tell in advance of making a request whether the CIS will accept the substitution. Since there are rarely any problems associated with making this kind of request (as opposed to directly filing a new AOS application), there is no harm in asking for the substitution first. If you would like to discuss this subject, we have created a special thread in the ImmInfo Forum: http://www.immigration-information.com/forums/adjustment-of-status/9456-substituting-a-new-i-140-into-an-existing-i-485-file.html#post37550 |
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