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.
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.