The U.S. Department of State’s July 2022 Visa Bulletin indicates a significant advancement for Indian nationals in the second preference category for employment-based (EB-2) visas.
On February 18, 2022, U.S. Citizenship and Immigration Services (USCIS) released a policy alert encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application to the first employment-based preference category, EB-1 (priority workers), or second preference category, EB-2 (noncitizens in professions with advanced degrees or with exceptional ability). USCIS stated that “there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (October 2021 through September 2022),” which is approximately twice as high as usual.
In order to request to transfer an adjustment of status application from one basis to another, USCIS requires the following criteria to be met:
- The applicant has continuously maintained eligibility to adjust status prior to submitting the transfer request.
- The adjustment of status application based on the original Form I-140 is still pending.
- The applicant is eligible for the new immigrant category.
- A visa is immediately available (i.e., the priority date is current) in the new immigrant category.
In the February 2022 policy alert, USCIS noted that I-485 Supplement J is required if one is requesting to transfer the underlying basis to a previously filed and approved Form I-140. The purpose of the I-485 Supplement J is to confirm the validity of the job offered in the immigrant petition used as the basis for the transfer request. The federal agency has created the USCIS Western Forms Center, which is “a new centralized location for receipt of transfer requests that are accompanied by a Supplement J.” Through September 30, 2022, an individual may submit the transfer request, accompanied by a Supplement J, to the following address: Attn: I-485 Supp J, U.S. Department of Homeland Security, USCIS Western Forms Center, 10 Application Way, Montclair, CA 91763-1350. USCIS will issue notices confirming receipt but only for transfer requests accompanied by a Supplement J. The processing time of those receipt notices is uncertain. USCIS also has requested that all employment-based transfer requests that are not accompanied by a Supplement J be submitted in writing to the USCIS office with jurisdiction over the pending Form I-485 and transfer requests accompanying a newly filed Form I-140 be sent to the normal filing location for the Form I-140.
USCIS emphasized that when requesting a transfer of underlying basis, a medical examination form should not be submitted with the request. If a medical examination form is required, USCIS will issue a request for evidence.
Transferring the basis of the adjustment of status application resets the 180-day adjudication clock for purposes of portability eligibility based on the portability provisions of the American Competitiveness in the Twenty-first Century Act (AC21). If USCIS grants the transfer request, the applicant is not permitted to withdraw the request or request transfer of the adjustment of status application to a third basis at a later time, except for possible transfers between the first three employment-based categories.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.