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.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe - Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2020. The Mayer Brown Practices. All rights reserved.

This 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 legal advice before taking any action with respect to the matters discussed herein.