Hypothetical: the Principal Beneficiary and his Derivative Spouse filed I-485 applications based on the Principal Beneficiary’s approved I-140 under EB-3. Before the I-485s were adjudicated, the priority date retrogressed. The Derivative Spouse, who has been working on EAD, became the beneficiary of an approved I-140 under EB-2 with a priority date that is current. What is the procedure for the couple to transfer their pending I-485s to EB-2 based on the Derivative Spouse’s approved I-140? If the Principal Beneficiary elects to remain the principal on his own approved I-140, what is the procedure for the Derivative Spouse to switch her derivative I-485 to a principal I-485 based on her own approved I-140 under EB-2?
If the new I-140 has not yet been filed, a proactive 'best practice' is to always include the beneficiary/applicant's A-number (if known) and by answering "yes" in Part 4 of Form I-140, which asks about the beneficiary's other petitions or applications, or providing the same information in a cover letter. These steps help USCIS link the I-140 to the applicant’s pending I-485 both electronically and physically.
If the new I-140 or I-130 has already been approved, a best practice is to submit an I-485 transfer request in an SRMT (Service Request Management Tool, a customer service database) through the USCIS National Customer Service Center (NCSC) at 1-800-375-5283 or online from the users website. An SRMT is paperless and usually the fastest method. Requests to transfer I-485 must be made in writing; however users will accept an SRMT provided the applicant or his representative requests the transfer and specifies which approved petition will be the new basis. The applicant should include the receipt number of the pending I-485 and the new visa petition. An I-485 transfer request may also be submitted in writing directly to NCSC. I-485 transfer requests submitted in writing to the NCSC take longer to process but are preferred if the applicants wish to include additional correspondence such as substituting a new G-28. Once NCSC receives the transfer request, it will be forwarded to an employment-based I-485 officer (EB 485 POC) for review. Due to fluctuations in the volume and processing time for physical correspondence, NSC cannot specify when the request will reach an EB 485 POC.
When transferring a pending employment-based I-485 to an approved I-130, the applicant will receive a notice that their I-485 is being transferred to the local USCIS Field Office with jurisdiction over their family-based filing. If an applicant seeks to transfer between approved I-140 petitions and the priority date on the newly approved I-140 petition is not yet current, the applicant will not receive a separate acknowledgment because it is not a case action and the transfer cannot be completed until the visa is available. However, customer service personnel may verify receipt of the applicant’s request and whether a visa is available. The I -485 will be reviewed by an Immigration Services Officer (ISO), the case will be updated with the new visa petition information and, if the transfer is permitted, the ISO will update the applicant's visa information with the Department of State Visa Office. The I-485 must remain in pending status until the (new) immigrant visa becomes available. An ISO may also issue a Request for Evidence (RFE) asking the applicant to specify the preferred basis for adjustment if more than one is present. Applicants should retain their SRMT case number, a copy of their written transfer request (or RFE response) for reference should follow-up be required. If the applicant has already submitted an I-485 transfer request, the applicant should wait at least 15 days after the visa becomes available before submitting a follow-up. If more than 15 days have passed, the applicant can contact NSC directly for follow up at: NSCFollowup.NCSC@uscis.dhs.gov. The TSC follow up mailbox is: tsc.ncscfollowup@dhs.gov.
Important: There is no fee for transferring an I-485 from one basis to another. I-485 transfers are not automatic and must be reviewed by an ISO. USCIS policy governing I-485 transfers is found at Chapter 23.2(1) of the Adjudicator's Field Manual (AFM), "Transferring an Adjustment of Status Application from One Underlying Eligibility Basis to Another."