Found more info
Here is more info on the same topic:
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07/04/2005: Replacement of Underlying Immigrant Petition for Pending I-485 Applications
This discussion is related to those whose EB-485 applications are pending and who need replacement of underlying immigrant petitions (approved I-130 petition or approved I-140 petition or approved I-360 petition) without refiling I-485 applications. Such needs may be occasioned by two events: One is the underlying I-140 petition may be affected by layoff or termination of sponsorship by the employer pending I-485 applications. The other is unavailability of visa priority date for the existing underlying immigrant petition and need replacement of underlying immigrant petitions by the visa number available another immigrant petition without affecting the pending I-485 application.
These replacement of underlying petition can be achieved by one of two situation. One situation involves a couple who filed I-485 applications together based on the principal alien's I-140 petition. The dependent spouse himself or herself subsequently obtains his or her own I-140 petition approval with a favorable priority date and there is a question as to the underlying I-140 petition for their pending I-485 application can be replaced by the spouse's I-140 petition without affecting their pending I-485 applications. The other situation involves EB-485 applicant who filed concurrent I-140/EB-485 packet and before he/she becomes eligible for AC-21 portability of the underlying I-140 petition, he/she is threated to lose the employment, but has another approved I-140 petition through another employer. The question remains whether he or she can replace the underlying I-140 petition by another favorable I-140 petition without affecting the pending I-485 application.
The current policy of the USCIS is that when both spouses have separate approved I-140 petitions, they can flip flop the underlying pending I-140 petition of the principal spouse by the dependent spouse's more favorable I-140 petition without affecting their pending I-485 applications on two conditions: First condition is the dependent spouse's I-140 petition has been approved. The second condition is that the dependent spouse's approved I-140 petition must have a visa number available at the time of request for the replacement of the underlying I-140 petition.
The following summary of rule which we posted on June 19, 2000 in our "Breaking News" is worth to repost here:
[Updated 06/19/00: New Rule on Replacement of Underlying I-130 or I-140 for Pending 485
The INS HQ revised its policy on this rule liberalizing replacement of the underlying petition without affecting the pending I-485. This new policy was released in the legally binding Memorandum dated 05/09/00 and reflected in the Adjudication Manual for the 485 adjudicators throughout the country and overseas posts. The following is a summary of the Memo:
Preconditions for Replacement: Two conditions must be satisfied:
(1) The previous approved I-130 or I-140 should be valid and not have been "revoked" or "denied" at the time of request for replacement.
(2) The priority date for the replacement new or subsequent petition must be "current." Accordingly, people cannot request replacement when the priority date is retrogressed and become "not current" for the replacement petition. Very important to remember for Chinese and Indians.
Replacement Request Deadline: It can be filed until I-485 is adjudicated (approved or denied). Besides, should he/she merits, a motion to reopen or reconsider can be filed within 30 days of 485 adjudication and request such replacement.
Types of Immigrant Petitions Eligible for Replacement: Existing and a new or subsequent immigrant petitions do not have to be in the same categories or preferences. I-130 can be replaced by I-140, and I-140 can be replaced by I-130, without affecting pending I-485. I-360 for Religous Worker Special Immigrant Petition can be replaced by either I-130 or I-140 or vice versa. However, when the underlying petitions cross between two different types or preferences, the priority dates cannot be transferred between the two different petitions. Very important to remember. As people know, priority dates can be transferred between different categories within the Employment-Based Immigrant Petitions. The same is not true when people cross over to or from other petitions.
Underlying Philosophy of the New Rule: The Memo states: "While the intent to work for the petitioning employer is a requirement for approval of the I-485, there is no legal requirement that the beneficiary of an approved employment-based visa petition work for the sponsoring employer before receiving permanent residence status. In addition, the transferring of the I-485 adjustment case can be in both the Service's and the alien's interest. If the transfer request is credible and justified, the alien is not gaining a benefit that he or she is not eligible for, especially when no change in the visa category is involved. In such cases, by allowing the transfer of adjustment cases to an eligible family or employment-based petition the Service is saving itself time and work." This reporter cannot agree more!!!]
On top of the foregoing rules of replacement of underlying immigrant petition for the pending I-485 applications, one should also be mindful of the following rules to cope with ever deteriorating visa number retrogression ahead of them: (1) The rules of retention of priority dates; (2) priority date in substitution of alien beneficiary for approved labor certification application; and (3) the rule of cross chargeability of the spouse's country of birth visa number.
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Now back to Mette's question "TXasian, may I ask you a question? What do you think happens if you transfer your pending I-485 to your spouse's I-140 (and PD) - and then it somehow gets denied? Will you be able to file a new I-485 based on your own I-140?"
Hmmm, my undertsanding is, if you have an approved I-140 (not revoked or substitued to another employee), and you are still employed by the same employer who sponsored your LC & I-140, I think you can re-apply for I-485, provided that your PD is current. But, if you are with a different employer now, your previous employer can still apply a new I-485 for you as long as there is an understanding that you will join them as soon as your green card is approved.
