NSC Procedure of Transfer of Pending I-485 From Current Approved Underlying
I-140 Petition to New I-140 Petition
This posting involves aliens who are waiting for the I-485 applications
where the underlying I-140 petition was approved but due to retrogression, I
-485 cannot be approved. Most of these cases are EB-3 cases. When the same
alien obtains an EB-2 labor certification approval through the same employer
or a different employer and the visa number is available for the EB-2 for
him or her, he should be eligible for filing another I-485 application based
on the visa number available EB-2 I-140 petition. This can be achieved
either by concurrent I-140/I-485 filing or if the new EB-2 I-140 has already
been approved, by filing of stand-alone I-485 application.
However, in the foregoing situation, the Pearson Memo of 2000 allows the
alien to transfer the pending I-485 application from the existing underlying
approved I-140 petition to a new EB-2 I-140 petition such that the alien
does not have to file another I-485 application to use the second I-140
petition. For this to happen, two conditions must be met: (1) The existing
underlying I-140 petition (most likely EB-3) must have been approved before
the I-485 transfer is requested. (2) Secondly, the visa number must be "
current" for the new I-140 petition (most likely EB-2) before the I-485
transfer is requested. Inasmuch as the visa number is current, the pending I
-485 application that suffer from the visa number retrogression can be
transferred to the nex I-140 petition.
According to the Nebraska Service Center, people should take the following
procedure to request such transfer of pending I-485 application from one I-
140 petition to another I-140 petition:
Request for Transfer of Pending I-485 Application to a Newly Filed I-140
Petition That Has Visa Number Current: In this situation, he/she is filing a
new I-140 petition (probably EB-2 with visa number "current") with the
agency to transfer the pending I-485 application and attach it to the new I-
140 petition. The NSC states that if he/she files such new I-140 petition,
he/she should use "large, bold print in the cover letter or with a separate,
brightly colored cover page and notation 'Inter-file I-140 with Pending I-
485' and include the Receipt/File Number of Pending I-485 Application, both
on the Envelope and Cover Letter.
Request for Transfer of Pending I-485 Application to Already Approved New I-
140 (most likely EB-2 category): NSC asks to print the attached over sheet
on brightly colored paper, and submitting it with a cover letter providing
the following Information:
Name of 485 applicant
Name of I-140 petitioner (employer)
I-485 Receipt Number
"A" Number of the 485 applicant
Prior I-140 petition (1) Receipt Number, (2) Filing Date, and (3) Approval
Date
New I-140 to be inter-filed
Statement requesting new I-140 be inter-filed with the pending I-485
application.
