Moving from EB-3 to EB-2: USCIS Encourages “Underlying Base Transfer” for Eligible Applicants

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On January 21, 2022, United States Citizenship and Immigration Services (USCIS) released new guidance regarding “underlying base transfer” applications between employment-based categories, commonly referred to as “interfilings.” “. Due to an exceptionally high number of employment-based immigrant visas available in these categories for this fiscal year (October 2021 through September 2022), eligible applicants are encouraged to apply for the transfer of the underlying base of their request for adjustment of status to first or second preference based on employment. A major contributing factor to this unusually high number of available visas is that the visa pool includes 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 do not currently available, but also has a pending or approved I-140 immigration application (I-140) in the employment-based second preference category (EB-2), where a visa East available, must request that USCIS transfer the underlying basis of the pending I-485 petition from EB-3 to EB-2.

Ironically, it was just over a year ago, in October 2020, when EB-3 priority dates became common long before the EB-2 category, and thousands of green card hopefuls became eligible to submit their I-485 petitions under the EB. -3 category. Some are even “demoted” from the EB-2 category to the EB-3 category. However, the EB-3 priority dates then moved back to early 2021, so the category was no longer current for many of these applicants. Although they were able to submit their I-485 petitions, USCIS can only issue a green card when the priority date is current. In December 2021, the EB-2 priority dates for India and China moved ahead of the EB-3 category, and in March 2022, the EB-2 category did not give up the lead.

Unsurprisingly, last year’s movements in priority dates resulted in many people receiving an approved I-140 in the EB-3 category with a pending I-485, and they now want to transfer their I- 485 to EB- currently faster. 2 category to speed up judgment.

Application process

The 2022 guidelines state that USCIS may, at its discretion, grant a request for transfer if the following criteria are met:

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

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

USCIS does not provide written responses to transfer requests, but it does will issue an acknowledgment of receipt for Supplement J, so that applicants can at least be reassured that their application has been received.

Transfer requests accompanied by a Supplement J until September 30, 2022 must 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 must 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 Form I-140 filing location.

Additional Recommendations

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

More information is available under the “Underlying Base Transfer” tab found on the Green Card for Employment-Based Immigrants page on the USCIS websiteas good as USCIS Policy Manual.

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