USCIS Advises Transferring Green Card Applications from EB-3 to EB-2 for Certain Applicants

| Jan 28, 2022 | Firm News

On January 21, USCIS announced that there are “an exceptionally high number of employment-based visas available” for the current fiscal year (October 2021 through September 2022), specifically stating that there are many more visas available in the EB-1 (priority workers) and EB-2 (workers with advanced degrees or workers of exceptional ability) categories than there are pending green card applications, meaning that USCIS expects there will be extra, unused visas in these categories.

USCIS’s announcement advises green card applicants that if they have a pending adjustment of status application (I-485) based on the third employment-based preference category (EB-3) and also have a pending or approved I-140 immigrant visa petition in the EB-2 category, then they should request that USCIS “transfer the underlying basis” of their I-485 green card application to the EB-2 category as long as their priority date in the EB-2 category is current. This process is also known as “interfiling.” The request to transfer the I-485 from one basis to another must be in writing, must be accompanied by a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (if required), and must be received by USCIS by September 30, 2022. Notably, the decision of whether to transfer the basis of the I-485 is subject to USCIS’s discretion, meaning that it is not guaranteed.

Generally, the USICS announcement only affects green card applicants born in India or China, since these are the two countries facing backlogs EB-3 and EB-2 preference categories. Green card applicants born in these countries with pending or approved I-140 petitions in both the EB-2 and EB-3 categories can compare their I-140 priority dates with the current months’ visa availability in the visa bulletin. Because the circumstances of each case are unique, we advise that you speak with a qualified immigration attorney if you have questions about transferring the underlying basis of your pending green card application to a different visa category.

Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of Margaret W. Wong & Associates, LLC. The above text is for informational purposes only and is not legal advice.