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December 2022 Visa Bulletin, Can I Transfer the Underlying Basis of my I-485 from EB-2 Back to EB-3?

Issues raised by filings resulting from the October 2020 Visa Bulletin are continuing to impact I-485 applications that could not be approved prior to the retrogression of the employment-based preference categories for India.

When the October 2020 Visa Bulletin indicated a cut-off date for EB-3 India that was ahead of the cut-off date for EB-2 India, it created an opportunity for applicants waiting in EB-2 to “downgrade” to EB-3 by filing a second I-140 petition. Those petitions now provided a current priority date for applicants in the EB-3 category and allowed them to file the I-485 application for Adjustment of Status.

Later, the EB-2 India cut-off date advanced ahead of the EB-3 India cut-off date, prompting many of these downgrade applicants to “upgrade” back into the EB-2 category by filing a request to Transfer the Underlying Basis using the I-485 Supplement J Form. While USCIS was able to approve many of these green card applications in the EB-2 category before the fiscal year ended on September 30, 2022, approximately 39,000 EB-2 India I-485 applications remained pending and fall into the next fiscal year which began on October 1st.

The Department of State has announced that a total of 197,000 immigrant visas (green cards) will be available for employment-based applicants for the current fiscal year, which runs from October 1, 2022 to September 30, 2023. Of these, approximately 3,943 will be available to EB-2 India. Because the immigration service already had 39,000 pending applications in this category, it was necessary to move both the EB-2 and EB-3 India cut-off dates backward to April 1, 2012 in the October 2022 Visa Bulletin. Now, in the December 2022 Visa Bulletin, the cut-off date for EB-3 India has once again moved ahead of the cut-off date for EB-2 India.

For those with pending I-485 applications originally in the EB-3 India category who later upgraded to the EB-2 India category with priority dates between October 2011 and June 2012, this again creates the opportunity to move back down to the EB-3 category where immigrant visas are available in order to obtain an approval.

Previously, USCIS had created a special “Transfer of Underlying Basis” process for applicants upgrading from EB-3 to EB-2. As of now, USCIS has made no announcement about the process for transferring the underlying basis back to the EB-3 category for those eligible. Per the USCIS Policy Manual, the beneficiary of an approved I-140 petition with a pending adjustment application may replace the approved petition with a different approved I-140 petition as the basis for the pending adjustment application. If the transfer request is granted, the applicant is not permitted to withdraw the request or request transfer of the adjustment application to a third basis at a later time except for possible transfers between the first three employment-based categories. The adjustment applicant must request in writing that USCIS transfer the applicant’s pending adjustment application from one basis to another. The applicant must:

  • clearly designate in writing which petition serves as the new basis of the adjustment application;
  • Include a copy of the adjustment application’s receipt notice;
  • Include evidence of eligibility for the new immigrant category in support of the transfer request to transfer to a new eligibility basis (such as the EB-3 I-140 approval and an I-485 Supplement J form)

Locations for Submission of Transfer Request

IMPORTANT: USCIS has changed the centralized location for receipt of transfer requests between the employment-based preference categories that are accompanied by a Supplement J.

You may submit your written request and completed Supplement J to:

U.S. Postal Service (USPS):

USCIS

Attn: Supp J

PO Box 660834

Dallas, TX 75266-0834

 

FedEx, UPS, and DHL deliveries:

USCIS

Attn: Supp J (Box 660834)

2501 S. State Hwy. 121 Business

Suite 400

Lewisville, TX 75067-8003

Only transfer requests accompanied by a Supplement J should be sent to the above address, and applicants should send no other forms, documents, or evidence to this address. https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-employment-based-immigrants

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy & Neumann, P.C. with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.