There are times when an applicant for adjustment of status may wish or need to change the basis upon which he or she has filed for AOS. For example, the applicant may wish to substitute a new employer for a previous employer, or switch from employment based to family based eligibility. The CIS has addressed this question, and provided guidelines to their adjudicators in the CIS Adjudicator's Field Manual, at Section 23.2(l):

(l) Transferring an Adjustment of Status Application from One Underlying Eligibility Basis to Another.

(1) Background. From time to time an alien who is an applicant for adjustment under section 245 of the Act based on one (preference or immediate relative) category will prefer to have his or her application considered under another category. Likewise, an applicant for adjustment under one section of law may prefer to seek adjustment under an altogether different section of law. Examples include:

• An alien who originally applied for adjustment based on an approved I-140 petition and married a U.S. citizen while the I-485 was pending, but who now prefers to adjust based on an I-130 filed by the new spouse;
• An alien who originally applied for adjustment as the spouse of a U.S. citizen, but now prefers to be granted adjustment under an employment-based category in order to avoid having to deal with the conditional residency requirements of section 216 of the Act;
• A Cuban national who applied for adjustment under section 202 of NACARA, but who now prefers to be granted adjustment under the Cuban Adjustment Act in order to receive the “rollback” provisions of the latter. (See Chapter 23.11(m)(2) of this field manual for an explanation of “rollback.”)

While in many cases it is perfectly legal to convert the pending adjustment application to the new basis without requiring a new adjustment application or a new fee, there are a number considerations which must be taken into account before granting adjustment under the new basis. These considerations are discussed in Chapter 23.2(k)(2) of this field manual.

Note: 8 CFR 204.2(i) sets forth instances where a petition is automatically converted from one preference category to another (e.g., upon the naturalization of the petitioner, a second preference petition for a spouse is automatically converted to an immediate relative petition). In such cases, obviously, the conversion is automatic and officers need take no action. However, in such cases affected aliens may now be able to file for adjustment of status as an immediate relative; conversely, an alien may lose his or her current priority date (such as a child of an LPR who turns 21).

(2) Guidelines. When considering a request by an adjustment applicant to convert the basis of his or her application, an adjudicator should take the following into account:

(A) New Application or Fee Not Required. If the criteria contained in this section are met, neither a new application nor a new fee is required.

(B) Refund of Fees Where an Alien Unnecessarily Filed a Second Adjustment Application. Unless there was a USCIS or INS error involved in the alien filing an unnecessary second adjustment application, the fee paid by the alien should not be refunded (even including the penalty fee under section 245(i) of the Act). However, if the alien or his or her legal representative was advised by USCIS or INS that a new application and fee were required in order to convert from one adjustment basis to another, the alien may request and USCIS may approve, a refund of any fees paid on the second I-485 (including the penalty fee under section 245(i)).

(C) The Request for Conversion Must Be Made in Writing. If an alien verbally requests conversion of an adjustment application, perhaps during the adjustment interview itself, he or she should be asked to date and sign a written statement to that effect (at which point such interview could proceed without further delay provided he or she is eligible to immediately adjust under the new classification).

(D) Continuing Eligibility and Continuing Pendency. In order to convert an adjustment application from one basis to another, there must be no break in the continuity of the underlying eligibility for adjustment prior to the submission of the conversion request. If the applicant does not maintain eligibility up until the point the conversion request is made, conversion may not be granted. (For example, if an alien whose original adjustment application was based on an I-130 filed by an LPR comes to an adjustment interview with a divorce decree dissolving that first marriage, along with a marriage certificate and I-130 based on a marriage to a U.S. citizen, he or she has failed to maintain continuity of eligibility since the first petition was automatically revoked at the moment the first marriage was dissolved. Accordingly, the adjustment application cannot be converted.) Likewise, if there is a break in the continuity of the adjustment application (e.g., the applicant chose to withdraw the application or the application was denied because he or she failed to appear for a scheduled interview without sufficient justification), it cannot be converted.

(E) Section 245(c) Considerations. Except as provided in this paragraph, if an alien who meets all the considerations for conversion of an adjustment application set forth in this discussion was not barred from applying for adjustment because of the provisions of section 245(c) of the Act at the time of the original adjustment application, he or she is also not barred by those provisions at the time of conversion. The exception to this arises when the alien is converting from a basis which enjoys an exemption from 245(c) to one which does not. For example, if an alien who entered the U.S. under the Visa Waiver Program and originally sought adjustment as the child of a U.S. citizen turns 21 years of age and wishes to convert to an applicant for adjustment as the unmarried son or daughter of a citizen, he or she acquires a bar to adjustment under section 245(c) (because he or she is no longer an immediate relative).

(F) Section 245(i) Considerations. If an applicant for adjustment (who was barred by section 245(c) at the time of the original I-485 filing) has already received a waiver of such bar under the provisions of section 245(i) by paying the penalty fee, he or she need not pay that penalty fee again. However, if the fee was not previously paid and the applicant is still eligible to seek the section 245(i) waiver (i.e., he or she falls within the grandfathering provisions), he or she may pay the section 245(i) penalty fee and seek relief under that section as part of this process.

(G) Dependent Adjustment Applications. In order for a dependent applicant for adjustment (e.g., an alien whose original adjustment application was as the spouse of a sibling of a U.S. citizen) to convert his or her adjustment application, the principal adjustment applicant (in this case the sibling of the U.S. citizen) must maintain continuing eligibility up until the time of the conversion request and the relationship between the principal and dependent adjustment applicants must continue to exist. If there is a break either in the principal’s eligibility (e.g., due to the death of the U.S. citizen petitioner) or in the relationship between the principal and dependent (e.g., they get divorced), the dependent’s adjustment application cannot be converted. Note, however, that (assuming that all other considerations are met) the dependent is not required to convert to another dependent category. For example, an alien who meets all the other considerations could convert from applying for adjustment as the spouse of the sibling of the U.S. citizen to applying for adjustment as principal applicant under a first employment based category.

(H) Fraud. If the original application for adjustment was based on a petition which is determined to have been filed fraudulently or with willful misrepresentation, the principal adjustment applicant (i.e., the beneficiary of that petition) is considered to have never had eligibility for adjustment of status and therefore cannot meet the continuing eligibility requirement. Likewise, anyone whose adjustment application is dependent upon that principal adjustment applicant’s eligibility (e.g., a spouse of a “sibling” of a U.S. citizen where the underlying I-130 is based on fraudulent birth certificates) is equally ineligible. (The principal’s I-485 is denied first based on the determination of fraud; the dependent’s application is then denied based on there being no provision under law on which he or she can file for adjustment.)

(I) Revocation vs. Revocability of Earlier Petition. If the petition upon which the pending I-485 was originally based has been revoked (under section 205 of the Act) before the alien makes a legitimate request for conversion, the alien does not meet the continuing eligibility requirement discussed above. In some cases (as set forth in 8 CFR 205.1), revocation of a petition is automatic and takes effect as soon as a triggering event occurs; in other cases (see 8 CFR 205.2), USCIS must go through the revocation process before the revocation takes effect. Continuing eligibility, as discussed above, ends as soon as the revocation takes effect. If the new basis of eligibility is not sought (e.g., if the new petition is not filed) before the revocation takes effect, the adjustment application cannot be converted.

(J) Visa Number Usage. In general, it is USCIS policy that if an alien is eligible to adjust status under both a preference category (as delineated in section 203 of the Act) and a non-quota category (e.g., as a section 201 immediate relative), USCIS should adjust him or her under the non-quota category in order to avoid using up a preference number which could be used by someone else. However, an alien is not entitled to immediate relative classification unless and until a visa petition has been both filed by the pertinent U.S. citizen relative and approved by USCIS (or a previously-approved preference petition is upgraded upon the petitioner’s naturalization). Accordingly, if that U.S. citizen relative does not file a petition (or withdraws a previously filed petition), the alien is unable to adjust under the non-quota category and this general policy does not apply.

(K) Special Programs Containing Filing Deadlines. Certain programs (e.g., HRIFA with regard to principal applicants and NACARA section 202 with regard to principal and dependent applicants) require that an applicant apply for adjustment of status by a given statutory deadline. In order to convert the basis of an adjustment application from something else to one of these special programs, the applicant would have to make the request no later than the filing deadline of the special program.

(L) The Priority Date must Be Current for the Basis to Which the Applicant Wishes to Convert. In order to convert an adjustment application to a new basis involving a preference classification, the alien must be the beneficiary of an approved visa petition (pertaining to that new basis) which has a current visa availability date. With limited exceptions, a priority date is NOT transferrable from one preference category to another, or from one petition to another.

Note: The request for conversion of the adjustment application is a totally separate issue from the priority date determination. Priority dates for preference visa categories are determined in accordance with the provisions of 8 CFR 204.1(c) and (d) for family-based petitions or 8 CFR 204.5(d), (e) and (f) for employment-based petitions and are generally not transferable. The only exceptions to this general rule are:

• Conversion within the first three employment based categories (sections 203(b)(1), (2), and
  (3), as provided in 8 CFR 204.5(e); and
• Conversion from a preference category under an obsolete section of law, as provided in 8
  CFR 204.5(f).

(M) Motions to Reopen and Motions to Reconsider. If an alien meets the requirements set forth in 8 CFR 103.5, he or she may file a motion to reopen or a motion to reconsider, as appropriate. In some cases where USCIS finds that an error was made, USCIS could choose to reopen or reconsider the case on its own initiative. Once you decide to reopen or reconsider an adjustment application, the original decision has been set aside and a new decision must be reached. If all other considerations are met, between the time the decision is made to reopen or reconsider and the time the new decision is reached, the adjustment application may be converted.

Note: If the original adjustment application was based on a petition that was also denied, the alien can only establish continuing eligibility if both the adjustment application and the petition are reopened or reconsidered.