Interfiling Between Spouses (Porting spouse’s EB-3 PD to EB-2)

 

Source – http://www.murthy.com/2012/05/18/interfiling-new-immigrant-petition-into-pending-i-485-case-2-of-2/

Some of the less common, but possible, scenarios in which interfiling can be helpful include those where a dependent application for adjustment of status is converted to a primary application or vise versa. There are many situations in which spouses have pending employment-based (EB), adjustment-of-status applications with one spouse as the primary and the other as the derivative (dependent) beneficiary. If the dependent spouse also has an approved I-140, it may be possible to covert the pending I-485s to the (previously) dependent spouse’s I-140, if it would be beneficial to do so.

Ravi and Preethi are married. In 2006, Preethi’s employer filed a PERM labor certification for her and also obtained the approval of an EB3 I-140. In the summer of 2007, Preethi filed an I-485 application based upon her approved EB3 I-140. Ravi also filed an I-485 at that time, as a derivative beneficiary in his wife’s EB3 case.

Ravi’s employer filed a PERM labor certification for him in 2008, and obtained an approved EB2 I-140 on Ravi’s behalf. Ravi and Preethi could request that their I-485s be converted from EB3 with Preethi as primary and Ravi as the derivative to EB2 with Ravi as the primary and Preethi as the derivative. The USCIS could act on this request, provided Ravi’s priority date is current.

This request should be made in writing, and requires that the adjustment applications are and have always been viable – essentially that it was always a “good” case. This request for conversion would not be likely to work if, for instance, something went wrong with Preethi’s case before Ravi’s priority date became current. In such an event, Ravi’s case could not take over as a basis for supporting the I-485.