Refile EB2 i485 or Interfile After EB2 to EB3 Downgrade?

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Originally published at: Refile EB2 i485 or Interfile After EB2 to EB3 Downgrade? - USA

USCIS visa bulletin is swinging fast in favor of the EB2 India queue in the current fiscal year while it gave all the opportunities to EB3 last year. This is expected since US immigration law has employment-based queues similar to car lanes on the road. You see the next lane moving faster and your wife…

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Great article for forum user!

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I recently filed i-485 by downgrade to EB3 with concurrent i-140. As my priority date falls into EB2 filing date now, and my i140 in EB3 is still pending, can we interfile to consider EB2?

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You can interfile but my opinion is to wait until it gets current in EB2 Final Action and that too if you are confident that it won’t retrogress.

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Thank you, Anil. Am22tech is my first option to know about any immigration policy changes. Really appreciate your effort for running such a great platform with all latest immigration information and it clarifies so many questions. It’s a great platform that saves $ s for all future immigrant families.
Thank you once again!

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One more thing: all your articles are precise, to the point, covers 360 degree view and well presented.
Keep up the great work team!

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Hi Anil,

I am having PD 2013 March
EB2 → EB3 filled on Aug 2021
EB2 -EB3 i140 downgraded on Oct1 2021
Now filling EB2 i485.

I have a futuristic question , what will happen when I will have EB2 EAD and EB3 EAD ? Which one will be valid for work ?
Will using one EAD nullifies the other i485 application ? Same question for which AP, which one to use when travelling outside USA and reentering ? Will appreciate if you throw some light on this scenario.

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Thanks Anil for the great Article. I filed EB2->EB3 downgrade 485 in Oct 2020. Later, the FAD was current and my sons age got locked. Now, I am planning to file new second EB2 485. If I file EB2 485 when the FAD is current in EB2, will it make sure my sons age is locked in EB2 queue as well ? I am trying to make sure that the already locked age is not affected due to the new 485.

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The age already locked should not be affected by a new i485 as long as the child is eligible for age under the EB2 as well.

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My EB2 date is current in Apr visa bulletin.I had downgraded to EB3 in Oct 2020.
I have 140 approved in both the categories.
In my case we have H1B and H4 for dependent approved but my minor kid has used her EB3 AP to travel from India to US.
Can we still file a new EB2 485 ?

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Curious to know what did your immigration lawyer say?

I think you should be okay doing an interfile for EB2 I-140 using I-485J even if your kid used AP to travel. Filing a new I-485 requires all beneficiary to be in non-immigrant status however this is a debatable topic as some people have reported filing new AOS while being in ‘pending AOS’ status.

Check with your lawyer and follow their advice.

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Thanks Kalpesh.
This is what my corporate lawyer’s saying ‘It is not possible to have two I-485 applications pending with USCIS at the same time.If you want to file another EB2 485 you need to withdraw current EB3 485’

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This again differs from lawyer to lawyer. As far as I know there is nothing mentioned about not having more than one I-485 in the USCIS policy manual. Generally it is the USCIS that will tell the beneficiary to withdraw one of the application when they are ready to adjudicate AOS when your PD is current in whichever of the two.

Also the interfile doesn’t mean you have two applications pending unless your attorney is wanting to file a net new I-485 in EB2.

USCIS itself is suggesting the beneficiaries to do interfile using I-485J and EB2 I-140 if you have a pending AOS in EB3 and if your PD is current in the final action chart.

Expand the ‘Alert’ box in the below link and share it with your lawyer or hire another lawyer who is willing to do interfile.

If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.

Expand the ‘Transfer of Underlying Basis’ box in below link.

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