USCIS Encourages Applicants with Pending I-485 Applications to Transfer from EB-3 to EB-2 if Priority Date is Current under the EB-2 Category

On January 21, 2022, the U.S. Citizenship and Immigration Services (USCIS) issued an alert strongly encouraging applicants who have pending employment-based I-485 green card applications under the EB-3 category to transfer (or interfile) to a pending or approved EB-2 I-140 petition if their priority dates are current under the EB-2 category per the Final Action Dates Chart in the Department of State’s monthly Visa Bulletin. Due to the exceptionally high number of employment-based visas available in fiscal year 2022 (October 2021 through September 2022), there are more visas available in the EB-1 and EB-2 categories than pending adjustment of status applications for those categories. The transfer from EB-3 to EB-2 will benefit many applicants, particularly those born in India or China, who have pending green card applications filed in October 2020 with EB-3 downgrade petitions, and who were affected by the EB-3 retrogression that occurred in November 2021.

The filing of a request to transfer the underlying basis of a green card application allows an applicant with a pending green card application to transfer from one petition to another without having to file a new green card application. To be eligible for the transfer to another petition, the applicant’s priority date must be current under the new employment-based category, and the applicant must demonstrate eligibility for the new category and that he/she has continuously maintained eligibility for adjustment of status. The request to transfer the underlying basis of a pending green card application is not a new policy, however in the recent alert, the USCIS updated the procedure for submitting the request during fiscal year 2022, or until the end of September 2022. Previously, applicants would submit a written request to the Service Center adjudicating their case. As there was no form associated with request or a receipt notice issued in response, applicants would not know whether the request was received or approved or even matched to their green card applications. Now, under the recent alert, applicants who have a previously filed or approved I-140 petition, will submit the written request to transfer with a Form I-485 Supplement J to a designated USCIS address. The submission of the Form I-485 Supplement J will generate a receipt notice and applicants will be able to track their request.

We will be reaching out to clients who will benefit from transferring to the EB-2 category, and who have priority dates that are now current or will be current in the February 2022 Visa Bulletin.