By:  Lihua Tan

An unusually high number of employment-based green cards are available for the current fiscal year, October 2021 to September 2022. United States Citizenship and Immigration Services (USCIS) is working to use all these visa numbers along with US Department of State. Many more employment-based first (EB-1 priority workers) and second (EB-2 workers with advanced degrees or exceptional ability) preference visas are available than pending Form I-485 adjustment of status applications.

Individuals who are eligible should consider applying in EB-1 and EB-2 categories. Those with pending EB-3 adjustment of status applications who also have a pending or approved EB-2 Form I-140 and an available visa in EB-2 category should consider requesting the USCIS to transfer the “underlying basis” of their Form I-485 applications.

TRANSFERRING THE UNDERLYING BASIS OF A PENDING FORM I-485

Some applicants may be eligible to transfer the underlying basis of their pending Form I-485, Application to Register Permanent Residence or Adjust Status, to a different employment-based immigrant category based on another Form I-140, Immigrant Petition for Alien Workers. To qualify for this transfer, the applicants must meet all the following conditions:  

• They have continuously maintained eligibility for adjustment of status.
• Their original I-485 applications are still pending.
• They are eligible for the new immigrant category, and
• They have a visa immediately available in the new immigrant category.

Applicants should work closely with their immigration attorney to request that their pending Form I-485 be transferred to another employment-based category. Individuals should not submit a new request to transfer your underlying basis if another request is pending. These requests are processed by the USCIS office that has jurisdiction over the pending Form I-485.

If an applicant requests to transfer the underlying basis to a previously approved Form I-140, an I-485 Supplement J application is needed to confirm the validity of the job offer. Supplement J is not needed if the applicant requests to transfer the underlying basis to a pending Form I-140.

No new adjustment of status application or filing fee is required to transfer the underlying basis of a pending Form I-485.

USCIS uses its discretion to approve or deny requests to transfer an applicant’s underlying basis. Your attorney can help ensure your documents are accurate and comply with USCIS requirements.

CONCLUSION

For assistance in filing an adjustment of status or to transfer an underlying basis to another employment-based category, or for other case-specific questions, contact your trusted Chugh, LLP immigration professional.