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USCIS Guidance on Requests for “Transfer of Underlying Basis” Between Employment-Based Categories

3 min read
Immigration statuses

U.S. Citizenship and Immigration Services (USCIS) is encouraging eligible candidates to consider requesting to transfer the underlying basis of their adjustment of status application to the first or second employment-based preference categories. Since there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (Oct. 2021 through Sept. 2022).

The overall employment-based yearly limit for the financial year 2022 is around two times as high. As expected because that limit includes all unused family-sponsored visa numbers from the fiscal year 2021, which was approximately 140,000.

Transfer of Underlying Basis Between Employment-Based Categories

Also, under the relevant statute, any visas are not needed in the fifth employment-based preference category. Are made available in the first employment-based preference category. And any visas not needed in the primary employment-based preference category are made available in the second employment-based preference category. These visas can’t be made available to candidates in the third available since, given the huge number of noncitizens awaiting visas in the second employment-based preference category, these visas are expected by statute to be used for the second preference category.

If you have a pending adjustment of status application in the third employment-based preference category and a visa isn’t available to you in that category, yet you also have a pending or approved petition and an available visa in the first or second employment-based preference category. We strongly encourage you to consider requesting that USCIS “transfer the underlying basis” of your pending I-485 application to the preference category where you have an available visa. Making such a request is the decision of every candidate and should be made based on your particular circumstances.

Who Can File:

You might be eligible to request to transfer the underlying basis of your Form I-485. Application to Register Permanent Residence or Adjust Status, to an alternate employment-based immigrant category. Based on another Form I-140, Immigrant Petition for Alien Workers. USCIS may, in its discretion, grant a transfer request if the following criteria are met:

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

How to File:

You should request in writing that USCIS transfer the underlying basis of your pending Form I-485 to another immigrant category.

  • If you are requesting to transfer your underlying basis to a previously filed and approved Form I-140, you should also submit a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer, or Request for Job Portability Under INA Section 204(j) with your written request to transfer the basis of your Form I-485. Supplement J confirms the validity of the job offer associated with the immigrant petition you need to use as the basis for your transfer request. If you are requesting to transfer your underlying basis to a Form I-140 that remains pending. Then you don’t need to submit a Supplement J.

[The US to process more employment green cards this fiscal year]

  • If a new Form I-140 is being filed for your sake and you are eligible to concurrently file. Then you might request to transfer the underlying basis of your pending Form I-485 to this new petition. The petition should be submitted with a signed letter requesting that your pending Form I-485 be transferred to the new petition. It should include a cover sheet (preferably highlighted with colored paper) stating “REQUEST FOR TRANSFER OF PENDING FORM I-485 [receipt number] TO ENCLOSED PETITION.” You should include a copy of the Form I-485 receipt notice as well as proof of eligibility in the new immigrant category. You don’t need to submit a Supplement J.

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