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USCIS Encourages Green Card Filings in EB-1 and EB-2 Categories

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Green Card Wastage

U.S. Citizenship and Immigration Services (USCIS) updated the website data for Form I-485, Application to Register Permanent Residence or Adjust Status in January 2022 to include information related to green card filings availability and a process referred to as a “transfer of underlying basis.”

Every year, around 140,000 US employment-based immigrant visas (green cards) are made available. And according to the USCIS, there is an “exceptionally high number of employment-based” green cards available for the fiscal year ending in September 2022. In particular, USCIS states that there are “some more” visas available in the EB-1 and EB-2 categories. Compared to the number of applications currently pending. Subsequently, USCIS advises green card candidates to consider applying under the EB-1 or EB-2 category. If eligible and encourages a transfer of underlying basis where possible.

Green Card Filings

“Transfer of underlying basis” refers to a process by which USCIS can re-categorize a pending green card application. From one preference category then onto the next, for example from EB-3 to EB-2. The requirements for a transfer of basis are outlined in the USCIS Policy Manual.

To be eligible for a transfer of basis from EB-3 to EB-2, the following criteria should be met:

  • The candidate has continuously maintained eligibility for adjustment of status
  • The applicant has a pending adjustment of a status application under EB-3
  • The candidate has a pending or approved EB-2 I-140 from the employer they plan to work for once their green card is given (typically the candidate’s current employer)
  • The candidate’s priority date is eligible for final action in the EB-2 category. As determined by the State Department’s visa bulletin.
  • The final action date for EB-2 India is 1st January 2013, or earlier in February 2022.

[Biden Administration Actions to Attract and Retain STEM Workers]

If the requirements above and in the Policy Manual are met. The candidate might request writing that USCIS transfer their pending green card application from EB-3 to EB-2. If the request to transfer basis is based on an approved EB-2 I-140. Then the request should be accompanied by a Form I-485 Supplement J signed by the same employer that filed the EB-2 I-140. Importantly, if a candidate has an approved EB-2 I-140 from a prior employer only, they are likely not eligible to transfer basis.

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