December 11, 2023

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USCIS Encourages Green Card Filings In EB-1 And EB-2 Categories – Immigration

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USCIS Encourages Green Card Filings In EB-1 And EB-2 Categories

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U.S. Citizenship and Immigration Services (USCIS) updated the website
information for Form I-485, Application to Register Permanent
Residence or Adjust Status
in January 2022 to include
information related to green card availability and a process
referred to as a “transfer of underlying basis.”

Each year, approximately 140,000 US employment-based immigrant
visas (green cards) are made available, and according to the USCIS,
there is an “exceptionally high number of
employment-based” green cards available for the fiscal year
ending in September 2022. In particular, USCIS states that there
are “many more” visas available in the EB-1 and EB-2
category compared to the number of applications currently pending.
Consequently, USCIS advises green card applicants to consider
applying under the EB-1 or EB-2 category if eligible, and
encourages a transfer of underlying basis where possible.

“Transfer of underlying basis” refers to a process by
which USCIS can re-categorize a pending green card application from
one preference category to another, e.g. from EB-3 to EB-2. The
requirements for a transfer of basis are outlined in the USCIS Policy Manual.

To be eligible for a transfer of basis from EB-3 to EB-2, the
following criteria must be met:

  • The applicant has continuously maintained eligibility for
    adjustment of status

  • The applicant has a pending adjustment of status application
    under EB-3

  • The applicant has a pending or approved EB-2 I-140 from the
    employer they intend to work for once their green card is issued
    (typically the applicant’s current employer)

  • The applicant’s priority date is eligible for final action
    in the EB-2 category, as determined by the State Department’s visa bulletin. The
    final action date for EB-2 India is January 1, 2013 or earlier in
    February 2022.

If the requirements above and in the Policy Manual are met, the
applicant may request in writing that USCIS transfer their pending
green card application from EB-3 to EB-2. If the request to
transfer basis is based on an approved EB-2 I-140, the request must
be accompanied by a Form I-485 Supplement J signed by the same
employer that filed the EB-2 I-140. Importantly, if an applicant
has an approved EB-2 I-140 from a prior employer only, they are
likely not eligible to transfer basis.

Through September 30, 2022, this written request may be
submitted to a designated USCIS mailing address.

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Mayer Brown article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
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