According to the most recent USCIS policy memo, yes you must file a new I-485 if you upgrade. Anecdotal evidence from the field, however, suggests that this policy is being ignored by a substantial number of service center adjudicators. Many applicants have successfully upgraded without having to file new I-485 applications.
The most recent policy memorandum on this subject explicitly states that while a new I-140 may be substituted in most cases, “a priority date may not be transferred to another preference category.” Now, since we know that 8 CFR 204.5(e) explicitly allows the retention of a previously established priority date for all subsequently filed I-140 petitions, irrespective of the preference classification involved, we know that this statement cannot possibly refer to any kind of overall prohibition on retention of an established PD in an upgrade situation. Rather, it refers to what the immigration service considers “unfair bumping up”. That is, allowing someone to establish a place in line with an EB3 filing and the later, after getting an EB2 approval, retain that place in line. By “place in line” I am referring to an applicant’s place in the AOS processing queue, not their place in line for a visa.
Notwithstanding this policy memo (which has been incorporated into the Adjudicator’s Field Manual), many adjudicators are routinely allowing applicants to substitute a new EB2 approval in place of their old EB3 approval and continue with the existing AOS application, now as an EB2 application. They are not requiring these applicants to file new I-485 applications even though this is what is required by their Adjudicator’s Field Manual.
We very strongly recommend that anyone who has received an EB2 I-140 approval, and has an existing AOS on file that is based on an earlier EB3 approval, first ask the CIS to allow them to substitute the new petition for the old. If and only if they refuse to allow this should you then file a new AOS application.
Courtesy – Global Immigration Partners, Inc.