Immigration Practice Pointer: Inter-filing I-140s, Priority Date Re-Capture, EB-3 to EB-2 Upgrades

This week, AILA published guidance for inter-filing a Form I-140 into a pending I-485 Adjustment of Status (AOS) application, with a request to re-capture an old priority date, and to upgrade to a higher preference category.

This information is especially useful for those individuals who were able to file an adjustment of status application during the summer of 2007 - known as "the Blizzard" (or the "AOS Crunch") in geeky immigration circles.

Basically, the July 2007 Visa Bulletin brought current all employment-based visa categories (with the exception of other workers). And so from July 1, 2007 to August 17, 2007, 325,000 adjustment of status (AOS) applications flooded the USCIS.

It was a very small window of opportunity, particularly for Indian and Chinese workers, who are subject to the longest wait times for employment based green cards.

Notably, there are a number of advantages to having a pending AOS, including authorization to stay in the United States while the application is pending, and substantially greater job mobility.

For Indian and Chinese professional and advanced degree workers in particular, whose priority dates retrogressed immediately (meaning they would still have to wait years to become permanent residents) a pending AOS would help them live in the United States and change employers under AC-21, while they wait for their priority date to become current again.

Many of these long-pending AOS applicants obtained master's degrees, moved up the corporate ladder or changed employers. They also started new green card cases based on labor certification, usually in higher preference categories, such as EB-2 (as opposed to EB-3).

Once the labor certification and I-140 is filed/approved, these foreign nationals have sought to inter-file the pending/approved I-140 petition into their pending AOS application, with a request to re-capture their old priority dates, and to upgrdae the entire case into the higher preference category. These actions would substantially speed-up the green card process.

If you are one of these individuals still waiting for your green card and believe you might be eligible to upgrade your green card case, we invite you to read our explanation of the process and requirements below, with frequently asked questions; and the aforementioned AILA practice pointer, for those who have already begun the process:


RWG EB-2 to EB-3 Upgrade Background


AILA Practice Pointer_Interfiling I-140s_Priority Dates_Upgrades