Are you an Indian National with a pending Employment Based I-485 Adjustment of Status Application? – This Is What You Need to Know:

June 22, 2022
Tahreem Kalam

If you are an Indian National going through the employment-based immigration process in order to receive a green card, you are already well aware of the extreme wait times (often 10+ years) that it takes to receive a green card from the day you start the process to the day your permanent resident status is approved.

That is why the last 21 months have been such a momentous time for Indian Nationals with pending green card processes. It started with the great rush of October 2020, when the Employment Based Third Preference Category (EB-3) for Indian Nationals jumped nearly an unprecedented 6 years forward from the previous month, allowing for thousands of eligible applicants to submit applications for Adjustment of Status to Permanent Residency. However, many of those applicants who filed in October 2020 are still waiting for their green cards to be adjudicated from USCIS.

Below are some common questions and concerns for those who have pending EB-2 or EB-3 I-485 Applications with USCIS and are hoping for USCIS to adjudicate their cases prior to October 1, 2022, the start of the new government fiscal year.

Why do I want my application approved before October 1, 2022?

Annual Limits: Government fiscal year runs from October 1 to September 30, and during each Fiscal Year the annual 7% per-country-limit on how many green cards can be issued for nationals from each country is reset. However, this 7% limit can be exceeded:

  • If there are unused Family Based visa (green card) numbers that were not used in a fiscal year, then those unused family-based visas then are added to the annual limit on Employment-Based visas for the following fiscal year.
    • Due to Covid-19 Consulate closures for most of 2020, many family-based visa numbers went unused and were therefore allocated to Employment Based visa numbers for the following fiscal year (FY) 2021, starting October 2020. The closures continued in FY 2022, with nearly all 140,000 family-based green cards going unused and overflowing into the employment-based numbers.
  • If a particular Employment Based visa category’s total visa (green card) numbers are not being used, then those can further be added to the most backlogged employment category, without regard to any normal annual limits.
    • The most backlogged visa category was EB-3 India. Therefore, all the unused visa numbers were able to be added to EB-3 India in October of 2020, the start of the new government fiscal year.

In FY 2021, there were nearly 2 times as many employment-based visa numbers available than in 2020. However, because USCIS was not able to adjudicate all the available visa numbers before the end of fiscal year, over 66,000 employment visas went unused at the end of FY 2021.

This year, the USCIS and the Department of Status (DOS) have indicated that they anticipate using all the available employment-based immigrant visas by October 2022, despite the higher annual limit.

Based on this, you may be wondering what steps you can take to make sure your petition is one of those getting adjudicated before October 1, 2022.

I did not submit a medical examination report with my I-485 filing, should I interfile my medical?

USCIS is trying to adjudicate the pending employment based green card cases as quickly as possible, which means that the files are often being transferred over from various service centers or even field offices. Due to the rapid movement of files, USCIS has requested that applicants DO NOT interfile their medicals. Rather, have the medicals ready to submit when requested.

It is likely that unsolicited Form l-693s would be difficult to match up with the related adjustment of status applications in a timely and efficient manner. This could in fact delay files from adjudication while Form l-693s are matched up to adjustment applications. Instead, we are proactively identifying employment-based adjustment of status applications with available visas that lack a valid Form 1-693, and directly contacting applicants to request that form. USCIS

My case was transferred to a different office / Can I request USCIS to transfer my case to a different office?

Generally, a transfer notice from USCIS is indicative of activity in the processing of your application. USCIS is making these transfers to maximize the use of all of their resources across the agency to ensure they use all visas available this fiscal year. An applicant cannot request a transfer of their file, nor can they determine where their case will be filed. USCIS dictate where an application must be initially submitted, and they use their own internal process to transfer cases based on internal resources and availability.

Currently, the wait times listed for Nebraska and Texas Service Centers are extensive, however, USCIS has clarified that “in order to attempt to use all of the employment-based visas available in FY 2022, USCIS is identifying and prioritizing the adjudication of all employment-based adjustment of status applications with available visas and approved underlying petitions, wherever they are in the process.” This means that even if your EB I-485 case is still pending at Nebraska or Texas Service Centers, USCIS is working to prioritize your case if your final action date is current.

I filed a request to transfer my pending EB-3 I-485 to be adjudicated under the EB-2 category, but I have not received confirmation from USCIS of the transfer request:

USCIS is often taking many months to issue receipt notices confirming receipt of the I-485J supplements filed with the transfer requests. USCIS has not yet clarified whether receipt notice of an I-485J means that they have accepted the transfer request or not.

As of June 2022, USCIS has clarified that it will now be sending I-485J receipt notices within 2 weeks.

I filed a request to transfer my pending EB-3 I-485 to be adjudicated under the EB-2 category, but my USCIS online case status still states that ‘an immigrant visa is not available’ for me and therefore my case is paused. 

As of June 2022 USCIS has clarified that “This is not a USCIS error — according to USCIS, your case status does not automatically change
once USCIS receives your transfer request. This message about visa availability will remain in place until USCIS takes action on your Form I-485. As of now, even if an I-485J receipt notice is issued, this status is still being shown.

What Happens if my pending EB I-485 case is not approved by October 1, 2022?

As of October 1, 2022, the per country limits will again be reset. However, if there were visa numbers from one of the EB categories that went unused by September 30, 2022, those numbers will be applied to the most backlogged EB category without regard to the per-country numerical limitation.

USCIS has not yet indicated if there will again be any additional employment-based visa numbers from unused family-based visas, or whether there will be spill over from unused EB-1 or EB-4 or EB-5 categories that would again get added to EB-3 India for FY 2023.

Additional Tips for Indian Nationals with pending Employment Based green card applications with USCIS:

  • USCIS Case Inquiry: If you submitted a medical examination report in response to an RFE and more than 60 days have passed, you can try to place a service request with USCIS. Utilize the Emma chart feature and ask to have a Tier 2 officer contact you.
  • Submit a properly executed transfer request from EB-3 to EB-2: If you filed your pending I-485 application based on an EB-3 I-140 petition and are now current (Final Action date) under EB-2, you can request USCIS to transfer your pending I-485 under EB-2. Note – you must have an EB-2 petition with your employer and the basis of the EB-2 petition must continue to be valid.
  • Avoid filing a second I-485: USCIS does NOT recommend filing a second, I-485 application in the hopes that it will be adjudicated faster than your pending 2020 filing. This will only cause further delays at the adjudication centers and could also potentially delay your own case if USCIS tries to connect to the two pending I-485 applications.
  • Have sealed medicals ready: As mentioned above, have your medical examination reports completed and ready to send when requested by USCIS. Medicals are valid for 2 years from the date they were signed.
  • Contact Congressional Officials: While it is unlikely that contacting your congressional leaders will expedite your case (unless you have a true emergency such as death of an immediate family member), it does create a record with congress on the need to adjudicate long pending I-485 applications. Add a personal reason on how waiting for a green card has affected your personal or professional life. Urge your congressional representatives to work towards changing the immigration laws so that I-485s are adjudicated in a timely manner.

If you are eligible to file your green card application through either the Final Action Dates or Dates for Filing, whichever is applicable, please reach out to the attorneys at MMH to have us to serve as your advocates and partners in your green card journey.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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