http://www.immigration-law.com/Visa%20Retrogression%20Q%26A.html
Q:I am a Chinese research scientist. My wife and I have M.D. degree. We have chosen research career rather than clinical career and we are currently employed with nationally prominent research institutes in the U.S. in H-1B nonimmigrant status. My wife started the labor certification process early in 2003 and was stuck at the Backlog Elimination Center. I filed National Interest Waiver I-140 petition concurrently with I-485 application for myself and my wife when the EB-2 visa number was available. The EB-2 number has retrogressed since then. My wife's labor certification was approved by the Dallas Backlog Elimination Center three months ago and the Texas Service Center also approved her I-140 petition. Now we would like to take advantage of her priority date for our pending I-485 applications. We are confused by all the discussion on transfer of priority date or transfer of I-140 petition or transfer of I-485 application. Please help us to understand the right procedure that we should follow.
A: I do not blame you why you are confused by all the discussion of transfers relating to the prirority dates. Let's start looking at each of these so-called "transfers" one by one.
(1) Transfer of Priority Date: The employment-based immigrant priority date can be retained once I-140 petition is approved. If one person has multiple I-140 petitions approved, no matter whether they were obtained through the same employer or different employers and no matter whether they belong to the same category or different categories, he or she can choose one of the approved I-140 petitions that has the earliest priority date and transfer that priority date to another approved I-140 petition for which the visa number is available. Even though this second approved I-140 has a low priority date and he would not have been able to file I-485 application based on this I-140 petition, he or she can file I-485 application based on the priority date which is borrowed from another approved I-140 petition. The priority date itself can not be transfeered to another individuals, no matter whether they are family members or not. In substitutution labor certification situations, the substituting alien beneficiary picks up the priority date, but it is not because of the transfer but because of the substitution of the alien beneficiaries.
(2) Transfer of I-140 Petition: The approved I-140 petitions cannot be transferred for an individual or between individuals. Accordingly, the term "transfer of I-140 petition" is a misnomer. There is the term "portability of I-140 petition" which allows the alien beneficiary to take one approved I-140 petition from the original sponsoring employer to another new employer if the conditions are satisfied after 180 days of filing of I-485 applications. Under AC 21 Act, the law assumes that the approved I-140 petition remains valid even if the alien leaves the employer and changes the employer when the conditions are satisfied. Since underlying I-140 remain valid even after the change of employer, the pending I-485 is also considered valid and not affected by the change of employer. In this context, there is no transfer of I-485 applications to the new employer proceedings.
(3) Transfer of I-485 Applications: When one has filed I-485 application based on a given I-140 petition and such I-485 applications are pending for him/her and his/her family members, these I-485 applications can be transferred from one approved petition to another approved petition, no matter whether the new petition belongs to same individual or it belongs to the spouse, provided that the visa number must be current for the new approved I-140 petition. If such transfer of I-485 takes place from one petition to another petition for the same individual, it gives the impression of transfer of the petition, but it constitutes transfer of pending I-485 applications from one petition to another petition. If it happens with the same individual, the individual continously remains "direct beneficiary" of the approved I-140 petition and the spouse continuously remains "derivative beneficiary" of the hu*****and/wife's approved I-140 petition. If the I-485 applications are transferred from one individual's approved I-140 petition to the spouse's another approved I-140 petition, the spouses roles change: The original direct beneficiary turns into a derivative beneficiary of the spouse's approved petition, and the spouse's derivative beneficiary status turns into a direct beneficiary of his/her own approved I-140 petition. In the transfer of I-485 applications, the pending I-485 applications are moved from one approved I-140 petition to another approved I-140 petition. Your situation is the transfer of pending I-485 applications asking the Service Center to move the pending I-485 applications from your approved I-140 petition to your wife's approved I-140 petition. Your request should be addressed to the Service Center that issued I-485 Receipt Notice.