Understanding USCIS’ Interfiling Guidance and the Child Status Protection Act (CSPA)
In February 2022, USCIS issued a policy urging and formalizing procedures enabling eligible applicants to switch pending Green-Card cases to a different, more advantageous employment-based (EB) category under a procedure known as a “Transfer of Underlying Basis”, or more commonly known as an “interfiling”.
An “interfiling” is a request for USCIS to consider approving a pending Green Card under an employment-based category different from the original employment-based category supporting the Green Card petition. If an individual has I-140 approvals in both EB-2 and EB-3, but an I-485 pending in only one of those categories, that individual can move to the other employment-based category by requesting an “interfiling”. An individual typically an interfiling where at the original time of filing the I-485, it was advantageous to be in one employment-based category but as time has moved on and the progress of the visa bulletin has changed, it would now be advantageous to be in the other employment-based category.
For the purposes of this article, let’s assume the final action date is current under EB-2 but not current under EB-3.
To be eligible for an interfiling or transfer of underlying basis, an individual must:
- Continue eligibility to adjust status; 2) Possess a pending I-485; 3) be eligible for the substituted category; and 4) the final action for the substituted category is current.
For anyone generally interested in an employment-based interfiling, points 1, 2, and 3 can be assumed. Meeting point four is simply a matter of “is your priority date current” in the other category?
Having a pending I-485 under a category with a current final action date means that a visa number is immediately available to that individual and their family, by and large they have has “locked in” their green card. For many a family, the choice to interfile may mean the difference between a dependent child receiving a green card or missing that opportunity by “aging out”.
Generally, a child can obtain a green card through their parent’s employment-based green card so long as they are under the age of 21. Recognizing that many children were aging out and losing their Green Card opportunities due to large USCIS processing backlogs, Congress created the Child Status Protection Act (CSPA). While the law did not redefine what is a “child” for purposes of obtaining a green card, it provided a method of recalculating a child’s age to see if they meet the definition of a child for immigration purposes.
Essentially, we look at the child’s age on the first day of the month in which their priority date was current under the final action date. From that age, we are allowed to subtract any time that the parent’s I-140 was pending from the child’s true age. The difference we arrive at is what USCIS will consider as the child’s “age” under CSPA.
By interfiling into a current employment-based category, it is possible for a family to beneficially leverage CSPA to ensure their child does not age-out. For instance, I am waiting on EB-3 final action date to become current. If eligible, I can request USCIS to interfile my case to EB-2. By doing so, an immigrant visa is immediately available to me thereby “locking in” my green card. In turn, if I have a child that is over the age of 21, or perhaps very rapidly approaching 21, by interfiling I can also “lock in” their green card by preventing their aging out under CSPA.
That being said, if you have a pending I-485 under EB-3 and a child who has aged out or may be close to aging out, requesting an interfiling from EB-3 to EB-2 may be the only avenue and opportunity to guarantee your dependent’s entitlement to a Green Card through your filing and support.
By Ryan A. Wilck, Partner and Attorney at Law
Ryan Wilck is an attorney at Reddy & Neumann P.C. assisting helping clients and their employees through the final phases of the permanent residence process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented work ethic to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem, he and his team will find a solution, through wisdom and effort.