A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Saturday, January 22, 2022

New Guidance for Interfiling of Employment Adjustment Applications

The race between the Employment Second Preference visa category (EB-2) and the Employment Third Preference visa category (EB-3) has caused a lot of confusion and even conflicts between employers and employees.  The EB-2 category has traditionally been more advantageous for applicants, especially Indians and Chinese, in terms of the cutoff dates.  The reason is that EB-2 positions require a higher level of qualifications (generally a graduate degree or its equivalent) to apply, and fewer applicants qualify for it.  

However, over time, more applicants have become qualified for EB-2 positions through graduate studies and/or accumulation of work experience.  The result is that the cutoff dates for EB-2 also slow down at times.  For example, in October 2020's Visa Bulletin, EB-3 was faster than EB-2 in terms of Final Action Dates.  In the same month, DOS advanced the Filing Date for EB-3 India by 5 months, resulting in many I-140 visa petitions being filed to "down-grade" to the EB-3 category.  Because USCIS also allowed the use of the Filing Dates for filing the I-485 adjustment applications in the same month, many such downgraded cases were filed concurrently with the I-485 applications.  

Recently, the tides have turned again. For example, in Feb 2022's Visa Bulletin, the EB-2 cutoff dates for both India and China have become more advanced than their EB-3 counterparts.  Consequently, many applicants are trying to switch gears again by reverting to the EB-2 category.  The process has not been easy, as USCIS did not have any standard procedure for interfiling or reassigning visa categories of pending I-485 applications.  

Well, that has just changed yesterday, thanks to the Biden-Harris Administration's efforts to recruit STEM talent, when USCIS quite unexpectedly announced a policy to allow transfer of pending I-485 applications to a different EB immigrant visa category.  The purpose of the policy is to use up all available visas in the employment immigrant categories. 

Which I-485 applications are eligible for transfer to another EB visa category?

USCIS will look at the following factors to determine eligibility:

1)  The applicant must have continuously maintained eligibility for adjustment of status;

2)  The subject adjustment of status application based on the original Form I-140 is still pending;

3)  The applicant must be eligible for the new immigrant category (e.g., EB-2); and

4)   There must be a visa immediately available in the new immigrant category (based on the Visa Bulletin).

It is important to note that this new mechanism is only for transfer of I-485s between employment immigrant categories.  Transfers to or from family-based or other immigrant categories should be made through the existing regular channels. 

How can such a transfer or interfiling request be made?

The request to interfile or transfer a pending I-485 to another EB visa category must be made in writing by the applicant or his/her legal representative.  For FY 2022, USCIS has designed a specific address for making such a request.  The following designated address and point of contact is valid through 09/30/2022.  

U. S. Department of Homeland Security

USCIS Western Forms Center

10 Application Way

Montclair, CA 91763-1350

If you have already submitted such a request before in writing to another USCIS address, you should not resubmit your request again.  The USCIS office assigned to work on your I-485 application will process your request accordingly for the fiscal year.    

What documents should be submitted?

The applicant or his/her lawyer should submit the request in writing, specifically and clearly stating the request.  Supporting documents to prove eligibility must also be provided.   If the underlying I-140 petition for the visa category (e.g., EB-2) to which you are requesting to transfer has already been approved, you must also submit the Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (I-485J form). If the underlying I-140 petition is still pending, the I-485J form is not required.

The purpose of the Supplement J is to confirm the validity of the job offered to the applicant in the underlying visa petition.  

What to expect after submission?

As with previous requests, USCIS does not provide a written response to transfer requests.  However, if an I-485J supplement form is submitted, USCIS will issue receipt notices for the form.

Final Thoughts

The new policy provides a better way for interfiling requests to be made, which is good news.  However, applicants should understand that each person's situation is different, and cutoff dates may and will change in the future.  Further, USCIS has indicated that, for purposes of case portability, the 180-day clock will re-start on the day the transfer request is received by USCIS.  Hence, applicants should analyze their situation very carefully before deciding what to do. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

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