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March 09, 2022

Switching From EB-3 To EB-2: USCIS Encourages "Transfer Of Underlying Basis" For Eligible Applicants

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Key Takeaways

  • U.S. Citizenship and Immigration Services (USCIS) released new guidance regarding requests for the “transfer of underlying basis” between employment-based categories, commonly referred to as “interfiling".
  • The USCIS Public Engagement Division suggests that the interfiling request should, at a minimum, contain sufficient information for USCIS to identify the pending I-485 and I-140 that form the basis for the application.

Background

On January 21, 2022, U.S. Citizenship and Immigration Services (USCIS) released new guidance regarding requests for the "transfer of underlying basis" between employment-based categories, commonly referred to as "interfiling." Due to an exceptionally high number of employment-based immigrant visas available in these categories for this fiscal year (Oct. 2021 through Sept. 2022), eligible applicants are encouraged to request the transfer of the underlying basis of their adjustment of status application to the first or second employment-based preference. A major contributing factor to this unusually high number of visas available is that the visa pool includes the unused family-sponsored visa numbers from fiscal year 2021 (approximately 140,000).

For example, someone with a pending adjustment of status (green card) application (I-485) in the third employment-based preference category (EB-3), where a visa is not currently available, but also has a pending or approved I-140 immigrant petition (I-140) in the second employment-based preference category (EB-2), where a visa is available, should request that USCIS transfer the underlying basis of the pending I-485 application from EB-3 to EB-2.

Ironically, it was a little over one year ago, in October 2020, when EB-3 priority dates became current well ahead of the EB-2 category, and thousands of green card hopefuls became eligible to submit their I-485 applications under the EB-3 category. Some even "downgraded" from the EB-2 category to the EB-3 category. However, the EB-3 priority dates then slipped backward in early 2021 so that the category was no longer current for many of those applicants. Although they had been able to submit their I-485 applications, USCIS can only issue a green card when one's priority date is current. In December 2021, EB-2 priority dates for both India and China moved ahead of the EB-3 category, and as of March 2022, the EB-2 category has not relinquished the lead.

Not surprisingly, the past year's movements in priority dates have resulted in many individuals receiving an approved I-140 in the EB-3 category with a pending I-485, and they now wish to transfer their I-485 to the currently faster EB-2 category to speed up adjudication.

Application Process

The 2022 guidance states that USCIS may, in its discretion, grant a transfer request if the following criteria are met:

  • You have continuously maintained eligibility for adjustment of status;
  • Your adjustment of status application based on the original Form I-140 is still pending;
  • You are eligible for the new immigrant category; and
  • You have a visa immediately available in the new immigrant category.

Applicants must request in writing that USCIS transfer the underlying basis of the pending I-485 to another immigrant category:

  • If you are requesting to transfer your underlying basis to an approved I-140, you need to submit a completed I-485 Supplement J Confirmation of Bona Fide Job Offer or Request for Job Portability (Supplement J) with your transfer request.
  • If you are requesting to transfer your underlying basis to a pending I-140, you do not need to submit the Supplement J.
  • There is no need to file a new I-485, and there is no filing fee.

USCIS does not provide a written response to transfer requests, but it will issue a receipt notice for the Supplement J, so applicants can at least be reassured that their request has been received.

Transfer requests that are accompanied by a Supplement J through September 30, 2022 should be submitted in writing to:

Attn: I-485 Supp J
S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350

Transfer requests that are not accompanied by a Supplement J should be submitted in writing to the USCIS office with jurisdiction over the pending I-485. If you have already submitted a transfer request to a USCIS office, you do not need to submit a new request.

Transfer requests accompanying a newly filed Form I-140 should be sent to the normal filing location for the Form I-140.

Additional Recommendations

The USCIS Public Engagement Division suggests that the interfiling request should, at a minimum, contain sufficient information for USCIS to identify the pending I-485 and I-140 that form the basis for the application. Also, for requests sent to the new centralized location address, medical exams should not be submitted. Instead, they will be requested via Request for Evidence (RFE) if required. Finally, note that if USCIS grants an interfiling request, the transfer request resets the 180-day clock for eligibility for AC21 portability provisions.

More information is available under the "Transfer of Underlying Basis" tab found on the Green Card for Employment-Based Immigrants page on the USCIS website, as well as the USCIS Policy Manual.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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