On January 21, 2022, USCIS posted an alert announcing that there is an “exceptionally high number” of employment-based visas available this fiscal year (October 2021 through September 2022). Specifically, there are many more visas available in the first and second employment-based categories than pending adjustment of status (AOS) applications pending. USCIS further advised that AOS applicants should consider applying in the first or second employment based (EB) preference categories, if eligible. AOS applicants based in the third employment-based preference category who also have a pending or approved petition and an available visa in the first or second employment-based preference category are strongly encouraged to request that USCIS “transfer the underlying basis” of the pending application to the preference category with an available visa.
As background knowledge, USCIS provides a path to lawful permanent residence through certain employment-based preference categories. These categories are first preference (EB-1), second preference (EB-2), and third preference (EB-3). EB-1 includes priority workers who are aliens with extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers, or certain multinational managers and executives. EB-2 category is for aliens who are members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers). EB-3 category are skilled workers, professionals, or other workers.
Adjustment of status applicants in the EB-3 category may be able to transfer the underlying basis of their AOS application to a different employment-based category based on another I-140, Immigrant Petition for Alien Workers. USCIS has the discretion to grant the transfer if the applicant is eligibility. To be eligible, the applicant must meet the following criteria:
- Continuously maintained eligibility for adjustment of status;
- Have a pending I-485 based on a different Form I-140 in a classification that is not current.
- Be eligible for the first or second preference category; and
- Have a visa immediately available in the new immigrant category.
The request to transfer must be made in writing. In some instances, an I-485 Supplement J may need to be submitted to confirm validity of the job offered in the immigration petition as basis of the transfer request. If the request to transfer the underlying basis is to a previously filed and approved Form I-140, the applicant must submit an I-485 Supplement J. USCIS will not provide a written response but will issue receipt notices for Supplement J.
If you find yourself in this situation, or if you have any questions on how to request a transfer of underlying status with USCIS, please do not hesitate to contact our office. Our experts are well-versed on the current employment-based immigration events and will be happy to assist.