The USCIS has recently announced that there are an exceptionally high number of employment-based immigrant visas available for this fiscal year (October 2021 through September 2022). This is especially positive news for Chinese and Indian nationals who have been waiting many, many years to obtain their lawful permanent resident status through employment-based green card sponsorship. Moreover, as a reminder, many of these Indian and Chinese adjustment of status applicants were eligible to concurrently file their I-140/I-485 applications at the end of 2020 by downgrading their cases to the employment-based third preference (EB-3) category. However, based on the most recent Visa Bulletins issued by the U.S. Department of State, the employment-based second preference (EB-2) category has once again passed the EB-3 category for Indian and Chines nationals regarding immigrant visa availability.
On January 21, 2022, the USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140 (e.g. transferring from EB-3 to EB-2). The Service, in its discretion, may grant a transfer of underlying basis request (a/k/a “interfiling”), if:
You have continuously maintained eligibility for adjustment of status;
Your adjustment of status application based on the original Form I-140 is still pending;
You are eligible for the new immigrant category; and
You have a visa immediately available in the new immigrant category.
The USCIS stated that this request must be made in writing and the Service has provided an office address in Montclair, California for these requests to be submitted. The Service has also stated that for some cases, a completed I-485J application must be submitted with this written request to transfer the underlying basis.
For more information on this new guidance, please see: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-employment-based-immigrants