ELIGIBLE EMPLOYMENT BASED GREEN CARD APPLICANTS SHOULD SWITCH EMPLOYMENT BASED CATEGORIES FROM EB-3 TO EB-2 OR EB-1

By admin From my Desk March 1, 2022

According to USCIS announcement dated February 18^th, 2022, U.S. Citizenship and Immigration Services encourages eligible applicants to consider requesting USCIS to transfer the underlying basis of their adjustment of status application to the first EB-1 (priority workers) or second EB-2 (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories, because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (October 2021 through September 2022).

The overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual, because that limit includes all unused family-sponsored visa numbers from fiscal year 2021, which was approximately 140,000.

In addition, under the relevant statute, any visas not required in the fifth employment-based preference category are made available in the first employment-based preference category, and any visas not required in the first employment-based preference category are made available in the second employment-based preference category. These visas cannot be made available to applicants in the third employment-based preference category because, given the significant number of noncitizens awaiting visas in the second employment-based preference category, these visas are required by statute to be used for the second preference category.

According to USCIS, it may 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.

The Applicant or their representative have to request in writing that USCIS transfer the underlying basis of your pending Form I-485 to another immigrant category.

In certain instances, the Applicant should also submit a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) with the transfer request. The purpose of the Supplement J is to confirm the validity of the job offered to you in the immigrant petition you want to use as the basis for your transfer request.

If you are requesting to transfer your underlying basis to a previously filed and approved Form I-140, you should submit Supplement J with your transfer request.
If you are requesting to transfer your underlying basis to a Form I-140 that remains pending, you do not need to submit Supplement J.
If a new Form I-140 is being filed on your behalf and you are eligible to concurrently file, you may request to transfer the underlying basis of your pending Form I-485 to this new petition. The petition must be submitted with a signed letter requesting that your pending Form I-485 be transferred to the new petition. It should include a coversheet (preferably highlighted with colored paper) stating “REQUEST FOR TRANSFER OF PENDING FORM I-485 [receipt number] TO ENCLOSED PETITION.” You should include a copy of the Form I-485 receipt notice as well as evidence of eligibility in the new immigrant category. You do not need to submit Supplement J.

Please note, per USCIS, it won’t provide a written response to transfer requests. However, USCIS will issue receipt notices for the Supplement J.

If you have already submitted a transfer request to a USCIS office, you should not submit a new request. All requests to transfer the underlying basis already received or that will be received at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.

Also, the Applicant is not required to submit a new adjustment of status application or filing fee with a request to transfer the underlying basis of your Form I-485 from one petition to another. Submitting a new adjustment of status application is not required to transfer the underlying basis of a pending Form I-485 and will not result in faster adjudication of the benefit request.

We will regularly update the blog as soon as any new information is available.

Disclaimer

This article aims to provide new information concerning Interfiling from one employment based green card category to another. This article, under no circumstances, acts as legal advice; therefore, for any further case-specific question, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).