Transferring the Basis of your Adjustment of Status Application from EB-3 to EB-2

March 14, 2022
Courtney Wachal

USCIS recently announced that there is “an exceptionally high number of employment-based visas available this fiscal year (October 2021- September 2022).” Because of this, USCIS is encouraging individuals who have pending adjustment of status applications that were filed under the third employment based  category to transfer their adjustment of status to the first or second category. In addition to encouraging the transfer of the underlying basis, USCIS seems to be willing to grant these transfers stating that “they are committed to using all the available visa numbers.” In fact, there has been a direct filing address created to manage these transfers, hopefully demonstrating USCIS’s commitment to grant these transfer requests.

What does it mean to transfer the basis of my Adjustment of Status?

All employment-based adjustment of status applications (I-485) are adjudicated on the basis of an approved I-140 petition. When your adjustment of status was filed, it was filed along with a first (EB-1), second (EB-2) or third (EB-3) employment-based category. Now, USCIS is indicating that there are more employment visas available in the first and second categories, meaning that if your adjustment of status was filed with an approved EB-3 (third preference category), you can essentially swap out your EB-3 I-140 with a pending or approved EB-2 I-140 and have USCIS adjudicate your adjustment of status on the basis of the second category, so long as you are eligible.

Am I eligible to transfer the basis of my Adjustment of Status?

You are likely eligible to transfer your underlying I-140 if you meet the following:

  • You have continuously maintained eligibility for adjustment of status (this means that you continue to have valid status in the United States);
  • Your adjustment of status application is still pending;
  • You are eligible for the new immigrant category (this means that you have a pending or approved EB-1 or EB-2 petition); and
  • You have a current priority date based on your new immigrant category (pending or approved EB-1 or EB-2 petition).

Should I Transfer the Basis of my Adjustment of Status?

Yes, we would suggest transferring the basis of your adjustment of status in the following situations:

  • You have a previously approved first or second employment based I-140
  • You have a pending I-140 in the first or second employment-based category
  • You are filing a new I-140 in the first or second employment-based category
  • Your priority date is current under the first or second employment-based category

In all the above-mentioned options, you must have a pending I-485 Adjustment of Status application to be eligible to do the transfer request. Additionally, USCIS requires that all transfer requests be made in writing and many will require an I-485J, Confirmation of Bona Fide Job Offer.

In October 2020, the priority date for many individuals who had approved EB-3 petitions became current resulting in many people filing their adjustment of status based on an approved EB-3. Currently, for individuals from China and India, the EB-3 category has retrogressed, which means that the priority date is no longer current for certain individuals. This means that your adjustment of status application will take longer to adjudicate since the priority date is not current. However, EB-2 has been progressing in the last few months, and as a result, the advantage of transferring the I-140 is that you have a better of chance of getting your green card adjudicated sooner.

How Likely is USCIS to grant my request?

Given that USCIS has created a specific filing address and is encouraging individuals to transfer the basis of their adjustment of status petitions, it is reasonable to assume that if you meet the necessary requirements, USCIS is likely to grant the request. However, please keep in mind that every immigration situation is different, so we cannot guarantee that a request would be granted.

If you have a pending I-485 that was filed under the EB-3 category, you have a previously approved EB-1 or EB-2 petition or are in the process of filing one, and your priority date is current, please reach out to one of our employment-based attorneys to further assist you.

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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