The May Visa Bulletin shows no movement for most employment-based preference categories, with the notable exception of EB-3 India, which continues to advance ahead of EB-2. As of the latest update, the EB-3 India priority date is now approximately three and a half months ahead of EB-2.

Given this continued progression, applicants with a pending I-485 adjustment of status application under the EB-2 category may be considering a transfer of the underlying basis to EB-3—particularly if their priority date is now current under EB-3 or is expected to become current soon. Below are some key considerations for applicants exploring this option:

Who Is Eligible to Transfer the Underlying Basis?

To transfer a pending I-485 application from EB-2 to EB-3, the applicant must be the beneficiary of a valid, approved or pending I-140 petition in the EB-3 category. If the EB-3 petition has already been approved, it must remain valid (i.e., not withdrawn), and the job offer must still be available. This means the petitioner of the EB-3 I-140 must be willing to sign and submit the I-485 Supplement J, confirming that the job offer described in the EB-3 petition is still valid.

If the applicant is no longer employed by the EB-3 petitioner, the transfer may be more complex. However, current employment with the petitioner is not strictly required—so long as the employer has not withdrawn the I-140, is still offering the job, and agrees to sign the Supplement J, the I-485 may be transferred to EB-3 on this basis.

The Priority Date Must Be Current Under the Final Action Dates Chart

Before submitting a transfer request, applicants must confirm that their priority date is current in the EB-3 category under the Final Action Dates chart. USCIS requires that a visa number be immediately available based on this chart in order to process a transfer of underlying basis.

Even if USCIS is accepting I-485 filings under the Dates for Filing chart in a given month, that chart cannot be used for transfer requests. Applicants should avoid submitting transfer requests prematurely, especially since visa bulletin movement is unpredictable and often fluctuates between categories at the start of a new fiscal year.

How to Submit a Transfer of Underlying Basis Request

USCIS now requires that all transfer requests be submitted using Supplement J to Form I-485. In Part 1 of the form, applicants should select the option to confirm that the job offered in the approved I-140 remains valid. The applicant must complete and sign the first two pages of the form, while the petitioner must complete and sign the remainder, which describes the job offer and sponsoring organization.

The completed Supplement J should be submitted to USCIS in accordance with the latest instructions available on the USCIS website.

What if I Don’t Have an EB-3 Approval Yet?

If the employer that originally filed your EB-2 petition is willing to help, they may submit an EB-3 “downgrade” petition using the same certified PERM labor certification, provided the job offer remains the same. You do not necessarily need to be employed by the petitioner at the time the downgrade is filed, as long as the job described in the approved labor certification is still available and being offered.

This is typically the fastest way to obtain an EB-3 I-140 approval, though initial premium processing is usually not available due to the original ETA Form 9089 not being included in the filing. However, premium processing can often be requested 1–2 months after receipt.

If the EB-2 employer is unable or unwilling to file the downgrade, a different (current) employer may sponsor a new EB-3 petition. However, this route requires a new PERM labor certification, which typically takes at least two years to complete.

Note: Beneficiaries of National Interest Waiver petitions are not eligible to downgrade to EB-3, as NIW petitions are only available under the EB-2 category.

What If I Transfer to EB-3, But the Dates Retrogress Before Approval?

Transfer requests should only be submitted when the EB-3 priority date is current, with the goal of completing adjudication within that month—assuming biometrics are done, security checks are clear, and a valid medical exam is on file. To increase the likelihood of timely adjudication, applicants may follow up with USCIS via customer service, request congressional assistance, or consider litigation if delays persist.

If retrogression occurs before the I-485 is approved, applicants may request another transfer back to the EB-2 category—if and when that priority date becomes current again. This is a common occurrence in October (the start of the new fiscal year), when visa movement often shifts across categories.

Conclusion

Applicants with pending I-485 applications should carefully weigh the risks and benefits of transferring their case from EB-2 to EB-3. Due to the complex nature of transfer requests and shifting visa bulletin trends, consultation with experienced immigration counsel is strongly recommended.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.