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USCIS Updates Regarding Employment-Based Adjustment of Status Applications

USCIS recently updated its Frequently Asked Questions page on the subject of FY2022 employment-based adjustment of status applications. In addition to reiterating USCIS’s intention to use as many employment-based immigrant visas as possible (approximately 280,000 available) by the end of fiscal year 2022 (September 30, 2022), the FAQs also provide insight into how USCIS is working on these cases, including:

USCIS is still in the process of transferring eligible I-485 files from the Texas and Nebraska Service Centers to the National Benefits Center.

Pursuant to its announcement in April, USCIS has been transferring adjustment of status files from Texas and Nebraska to the NBC if they are eligible to receive the immigrant visa (i.e., the underlying I-140 petition has been approved, biometrics and background checks have been completed, and the priority date is current). The recent FAQ update confirms that as of mid-June, approximately 67,000 such applications have been transferred, but that transfers are still ongoing and are not yet complete due to the volume of cases.

Therefore, if you have an I-485 application pending at the TSC or NSC that meets the transfer criteria but have not yet received an I-797 Transfer Notice, your case can still be transferred as USCIS continues to identify and move these files. If you do receive a notice of transfer for the I-485 application, it generally means the case is actively moving towards adjudication. As of now, there is no mechanism to proactively request a file transfer.

The longer durations posted on the USCIS processing times website for TSC/NSC I-485s reflect the average processing time of the remaining, un-transferred applications.

USCIS also address the longer posted processing time of employment-based adjustment applications pending at the Texas or Nebraska Service Centers, which is currently listed at 32.5 months on the USCIS website. The FAQs clarify that these longer durations are based on the remaining pool of un-transferred files, which may not have been moved because they are not yet eligible (the priority date is not current, for example), or because they have other additional processing issues, such as a pending Request for Evidence.

I-485 applications that have been moved to the National Benefits Center are not expected to take 32 months to adjudicate, despite their case numbers being attached to the Nebraska or Texas Service Centers. The FAQs reiterate the agency’s goal of adjudicating as many eligible I-485 applications as possible by the end of the current fiscal year, meaning cases that have been transferred will hopefully be processed by September 30, 2022.

The online Case Status message “We are temporarily pausing work on your application because an immigrant visa number is not immediately available to you” does not necessarily mean work has been paused.

This message has been appearing for many applicants who have submitted a request to transfer the underlying basis of their I-485 from the EB-3 to the EB-2 category via the I-485 J supplement, and the status is misleading because the transfer request is based on the applicant’s priority date being current in the EB-2 category. In the FAQ, USCIS states that for applicants who “have submitted a valid transfer of underlying basis request, then this Case Status Online message does not mean that USCIS has paused work on your application.”

Rather, the message appears to be due to the limitations of the online case status system, which does not yet have the ability to post updates based on a successful EB category transfer, and therefore this “paused work” message is the default that appears after the agency has taken other action on the case, such as the file being transferred to another office.

Does the I-140 petition upon which the I-485 application was initially filed need to be approved in order to request the underlying basis transfer?

USCIS has confirmed that I-485 can be transferred from a pending I-140 to a different I-140 in another category.

Should medical exams be proactively sent to USCIS?

For I-485 applicants who have not yet submitted their I-693 medical exam, USCIS is requesting that they not be mailed in unsolicited, as the transfer of files between service centers, the NBC, and possibly field offices makes it unlikely that the exam will be successfully matched to the physical file.

USCIS has stated that it is identifying files that lack the exam and is contacting applicants to request it – based on similar activity last year, the request may be in the form of a mailed RFE, or even a phone call from an adjudicating officer at a field office. The best preparation for applicants in this category is to have the I-693 ready to submit as soon as it is requested – with the extension of the submission period for medical exams beyond the initial 60-day window, there is less likelihood of an exam being invalid for being completed too early, so applicants are encouraged to take the necessary steps for obtaining the I-693 from a civil surgeon now.

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.