Recently, due to the significant retrogression of Final Action Dates (Chart A) in the the EB-5 unreserved visa category, applicants who have multiple approved or pending immigration petitions are attempting to expedite the adjudication of their I-485 adjustment of status applications by using a strategy known as “Transfer of Underlying Basis”. This approach involves transferring the priority date from one underlying petition to another pending immigration application, in an effort to align with a more favorable visa bulletin date and potentially accelerate the processing of the I-485 application. While this strategy appears to maintain the lawful status of a applicant without refiling Form I-485, EB-5 investors and their dependent applicants should exercise due diligence and carefully evaluate all potential risks given the complex legal implications involved in such conversion procedures.

Statutory Provision

The U.S. Citizenship and Immigration Services (USCIS) provides guidance for transferring underlying basis of a pending Form I-485 to a new immigrant petition category (Transfer of Underlying Basis) in Chapter 8 of the USCIS Policy Manual at the official website: https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8. The following conditions must be satisfied:

1. Prior to submitting the transfer request, applicants must not break the continuity of their underlying eligibility to adjust. 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new basis for the pending adjustment application before the initial petition supporting the adjustment application is withdrawn, denied, or revoked. If the original adjustment application was based on a petition determined to have been filed fraudulently or with willful misrepresentation, the applicant is considered to have never been eligible for adjustment of status and therefore cannot meet the continuing eligibility requirement.

2. 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cannot be granted once a final decision has been made on an adjustment application, whether granted, denied, or withdrawn, even if USCIS reopens or reconsiders the final decision.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. The applicant must meet eligibility requirements for the new immigrant category and not be subject to inadmissibility grounds or adjustment bars under that new basis. For instance, an applicant who initially filed Form I-485 as the spouse of a U.S. citizen may later request to change the basis of the application to an employment-based category. However, such a conversion would result in the loss of special waivers available to immediate relatives of U.S. citizens (such as exemptions for visa overstays or status violations), which would would have been applicable under the family-based immigration category.

4. There must be a visa number that is currently and immediately available under the new immigration category sought by the applicant. 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. In other words, the month when the transfer request is filed, the priority date from the new immigrant category must already be current according to the cut-off date published by USCIS for that visa category that month. This requirement is particularly critical in the EB-5 context, as EB-5 visa retrogression occurs frequently, and cut-off dates are subject to constant adjustments. It is also important to note that EB-5 priority dates generally cannot be cross-utilized with priority dates from other immigrant categories.

Besides, in order to transfer a derivative beneficiary’s adjustment application, the relationship between the principal and dependent must continue to exist. If the principal transfers his or her adjustment application to another basis that does not allow for derivatives (such as the immediate relative immigration category), the derivative loses eligibility for adjustment of status at the time of the transfer.

According to the Policy Manual, requests to change the underlying basis among the EB-1, EB-2, and EB-3 employment-based preference categories are generally favorably considered. However, USCIS maintains significant discretion in adjudicating changes involving other types of immigration categories.

Transfer Procedures

1. Transferring an Approved Form I-140 The applicant must submit a written request to USCIS. This request should include sufficient information to allow the immigration service to identify the pending adjustment application currently under review and the new underlying immigrant petition that will serve as the basis for adjustment.

The applicant must submit the written request along with a complete and properly filed Form I-485 Supplement J to the following address:

 Mailed via United States Postal Service (USPS):

USCIS

Attn: Supp J

P.O. Box 660834

Dallas, TX 75266-0834

 Mailed via FedEx, UPS or DHL:

USCIS

(Attn): Supp J (Box 660834)

2501 S. State Hwy. 121 Business

Suite 400

Lewisville, TX 75067-8003

2. Submitting the Transfer Request with a New Petition Filing

The applicant may request to transfer the underlying basis of the pending Form I-485 concurrently when filing a new immigrant petition. To do so, the following statement should be clearly made on the cover sheet:

“REQUEST FOR TRANSFER OF PENDING FORM I-485 [Case#] TO ENCLOSED PETITION.”

A copy of the I-485 receipt notice should also be included, along with supporting documentation demonstrating the applicant’s eligibility under the new immigrant category. (Note: Transferring to a new or pending Form I-140 petition does not require submission of Form I-485 Supplement J.) The new immigrant petition and the transfer request should be sent to the standard processing location for that particular type of immigration petition.

3. Other Types of Transfer Requests

For transfer requests that do not fall under the two circumstances listed above, applicants should submit a written request to the USCIS office currently adjudicating the pending Form I-485. The request must clearly identify both the pending I-485 application and the new immigrant petition, and should be attached with supporting documentation demonstrating eligibility for the transfer.

Legal Consequences of a Successful Transfer of Underlying Basis

Once USCIS approves the request to transfer the underlying basis of the pending Form I-485:

 The I-485 application will be permanently linked to the new immigrant petition;

 The initial petition can no longer serve as the basis for the I-485 application;

 Transfers between EB-1, EB-2, and EB-3 categories is generally permissible; whereas a transfer from EB-5 to EB-2 (or other immigration categories), or vice versa, is a matter of discretion and is not guaranteed approval;

 The applicant cannot withdraw the transfer request or initiate a new transfer (unless under limited transfers allowed among EB-1, EB-2, and EB-3 categories);

 USCIS will not issue any written notice or update the case status online to reflect the transfer. In cases where visa bulletin dates retrogress, the online case status may still indicate the I-485 application is on hold due to unavailability of a visa number, even if the transfer request has already been approved.

In other words, in most cases, applicants typically will not know whether such a transfer has actually been approved unless and until they receive their green cards. Legal Consequences if a Transfer Request is Denied or Not Processed

If USCIS denies or fails to act on the transfer request:

 There is no formal mechanism for appealing, reopening, or contesting the decision;

 The I-485 adjustment application may be denied if the initial immigrant petition is no longer valid;

 The applicant may mistakenly assume that the transfer was successfully done, only to discover months later that USCIS did not process the request;

 Particularly in EB-5 cases, due to prolonged processing times and narrow filing windows, a failed transfer may jeopardize the entire case.

Therefore, it is generally advisable for EB-5 applicants to proceed with caution when considering this transfer of underlying basis procedure.

Summary of Risks Associated with Transfer of Underlying Basis

The process of transferring the underlying basis of a pending Form I-485 carries the following risks:

 No Confirmation Notification: USCIS does not provide written confirmation that a transfer request has been received or approved, nor is the transfer reflected on the case status page. This is particularly likely to cause confusion, especially when transitioning from a visa category with retrogressed dates to one with immediately available visas, as the USCIS case status may still show “We are temporarily pausing work on your application because an immigrant visa number is not immediately available to you”. In many cases, applicants only learn that their transfer requests were approved after they receive their Green Cards.

 Irrevocability: Once the transfer request is granted, the initial immigrant petition can no longer serve as the basis for the I-485 application, and the conversion cannot be reversed. 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 (unless under limited transfers allowed among EB-1, EB-2, and EB-3 categories).

 Impact on Derivative Applicants: A change in the principal applicant’s underlying basis may result in the loss of eligibility for dependent applicants.

 Discretionary Denial: Except for transfers among the first three employment-based categories, the decision on all other transfers of basis is at the discretion of USCIS.

EB-5 investors should also pay particular attention to the following situations:

 Transfer a pending I-485 application from EB-5 direct investments to EB-5 regional center investment (or vice versa);

 When filing Form I-526E under the Reform and Integrity Act (RIA), potential issues may arise regarding whether the applicant meets the requirements for concurrent filing of Form I-526 and I-485;

 The principal applicant’s derivative children may face age-out risks under the Child Status Protection Act (CSPA), as their eligibility could be impacted by the new petition’s filing date.

Conclusion

The transfer of underlying basis for a pending Form I-485 provides applicants with valuable flexibility, but only when executed with precise planning. For EB-5 investors, such transfers present unique complexities. The discretionary adjudication of USCIS and the lack of procedural transparency further amplify the risks associated with this process. Investors should exercise caution and undertake rigorous planning in consultation with qualified legal counsel.