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USCIS Recommends Adjusting Status to Employment-Based Immigrant Visas

What is the USCIS Recommending? 

The United States Citizenship and Immigration Services (USCIS) is recommending that individuals who are applying for an employment-based immigration status by adjusting their status can transfer the underlying basis of their adjustment of status application to the first or second employment-based preference categories (EB1 or EB2).

USCIS particularly recommends that applicants in the third employment-based preference category who are waiting for their priority date to become current on the Visa Bulletin transfer the underlying basis of their adjustment of status application. 

Why is the USCIS Recommending this? 

As we know, the U.S. government places a cap or limit on the number of employment-based visas issued per year for each preference category. At the same time, visas in certain employment-based categories that are unused in one year can “roll over” to be used the next year.

For example, EB5 visas not used one year roll over into the EB1 visa category the next while unused EB1 visas roll over into the EB2 visa category. However, none of these visas can roll over to the EB3 visa category under the applicable law. Unused family-sponsored visas in one year also roll over to the EB category in the next year. 

Right now, the USCIS reports that the overall EB annual limit for 2022 is nearly twice as high as usual. There are a variety of reasons that certain EB visas have been under-utilized, but it’s likely the COVID-19 pandemic is a major contributing factor. 

What Does it Mean to Transfer Underlying Basis When Adjusting Status? 

Transferring underlying basis is a request made to USCIS that the basis, or reason, for an adjustment of status application be transferred from one pending or approved Form I-140, Immigrant Petition for Alien Workers in one preference category to another pending or approved Form I-140 in a different preference category. 

Instead of submitting a formal application to the USCIS for the different preference category, the USCIS allows applicants to request a transfer of underlying basis by making a request in writing. 

In February 2022, the USCIS advised that applicants who have a pending or approved adjustment of status application for the EB3 visa category as well as in the EB1 and EB2 categories should consider transferring the underlying basis of their pending Form I-485, Application to Register Permanent Residence or Adjust Status to the EB1 or EB2 categories if no EB3 visa being presently available or “current.”

Of course, this is only useful to applicants who have an approved or pending adjustment of status application for either the EB1 or EB2 category, and if an EB1 or EB2 visa is available to applicants sooner than the EB3 visa. Thus, the USCIS recommends applicants should determine whether or not to request a transfer of the underlying basis on their individual circumstances. 

Who is Eligible to Transfer Underlying Basis? 

The USCIS has provided some guidance about who is eligible to request a transfer of the underlying basis of Form I-485 to a different employment-based immigrant category based on another Form I-140. However, it is in the USCIS’ discretion whether or not to grant the request. The USCIS says it may do so for applicants who meet the following criteria: 

  • The applicant has continuously maintained eligibility for adjustment of status; 
  • The applicant’s adjustment of status application based on the original Form I-140 is still pending; 
  • The applicant is eligible for the new immigrant category; and 
  • The applicant has a visa immediately available in the new immigrant category. 

How to Request Transfer Underlying Basis?

The USCIS requires that applicants request in writing that the USCIS transfer the underlying basis of the pending Form I-485 to another immigrant category. 

Do you already have an approved Form I-140 to transfer to? 

For applicants who already have a previously filed and approved Form I-140 that they are requesting to transfer their basis to, they must submit a completed Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) with a written request to transfer the basis of Form I-485.

Supplement J does not need to be filed for applicants whose request to transfer their underlying basis is to a Form I-140 that remains pending, and is thus not yet approved. 

By submitting Supplement J, the applicant is confirming the validity of the job offer associated with the immigrant petition (Form I-140) that the applicant wants to use as the basis of their transfer request. 

Is a new Form I-140 being filed on your behalf?

Applicants who are eligible to concurrently file two Forms I-140 and a new, second Form I-140 is being filed on their behalf, may request to transfer the underlying basis of their pending Form I-485 to the new petition.

The new petition must be submitted with a signed letter that requests the pending I-485 be transferred to the new petition, Form I-140. The letter should include a cover sheet highlighted with colored paper that states, “REQUEST FOR TRANSFER OF PENDING FORM I-485 [receipt number] TO ENCLOSED PETITION.”

A copy of the Form I-485 receipt notice and the applicant’s evidence of eligibility for the new immigrant category should be included.

It is not necessary to submit a Supplement J.

Where to File? 

The USCIS’ guidance provides two different filing locations where applicants should send their requests, depending on whether or not the applicant already has an approved Form I-140 to transfer to and thus is submitting Supplement J. 

Applicants with an Approved Form I-140 Submitting Supplement J

Requests accompanied by a Supplement J should be sent to a new centralized location in California through September 30, 2022: 

Attn: I-485 Supp J

  1. S. Department of Homeland Security

USCIS Western Forms Center

10 Application Way

Montclair, CA 91763-1350

Applicants with a Pending Form I-140 Filed and No Supplement J

As discussed above, Supplement J does not need to be filed for applicants whose request to transfer their underlying basis is to a Form I-140 that remains pending, and is thus not yet approved. 

These applicants must send their request to the USCIS office that has jurisdiction over the pending Form I-485. 

Applicants sending a request without a Supplement J should not send their request to the California address listed above. 

The USCIS office with jurisdiction can be determined by looking at any receipt or transfer notices the applicant has received from the USCIS. Additionally, applicants may determine which USCIS office has jurisdiction by contacting the USCIS Contact Center at 800-375-5283.

Applicants with a New Form I-140 Filed and No Supplement J

Applicants who are having a new, second Form I-140 filed on their behalf (and thus with no Supplement J), must send their request to one of the usual Form I-140 filing locations in Texas, as shown on the USCIS website.

Applicants with a new Form I-140 filed and no Supplement J should not send their request to the California address listed above or the USCIS office with jurisdiction over their case. 

Do I Have to Submit a New Form I-485 to Transfer Underlying Basis? 

No. The USCIS advises that submitting a new Form I-485 is not required, and will not speed up the process. 

Additionally, the USCIS says that it is not necessary to submit a filing fee with a request to transfer the underlying basis from one petition to another. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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