• Kristina M. Hernandez

USCIS Guidance on Requests for “Transfer of Underlying Basis” Between Employment-Based Categories

Because of an exceptionally high number of employment-based immigrant visas available in the EB-1 and EB-2 categories during this fiscal year (October 2021 through September 2022), USCIS is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application (commonly known as “interfiling”). USCIS states that the overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual, because that limit includes all unused family-sponsored visa numbers from fiscal year 2021, which was approximately 140,000 visas.


Further, USCIS has stated that under the relevant statute, any visas not required in the EB-5 category are made available in the EB-1 category, and any visas not required in the EB-1 category are made available in the EB-2 category. These visas cannot be made available to applicants in the EB-3 category because, given the significant number of noncitizens awaiting visas in the EB-2 category, these visas are required by statute to be used for the EB-2 category.


If you have a pending AOS application in the EB-3 category and a visa is not available to you in that category, but you also have a pending or approved petition and an available visa in EB-1 or EB-2 categories, USCIS strongly encourages you to consider requesting that USCIS “transfer the underlying basis” of your pending I-485 application to the preference category where you have an available visa.


Who Can Request a “Transfer of Underlying Basis”:


You may be eligible to request to transfer the underlying basis of your Form I-485, Application to Register Permanent Residence or Adjust Status, to a different employment-based immigrant category based on another Form I-140, Immigrant Petition for Alien Workers. USCIS may, in its discretion, grant a transfer request if the following criteria are met:


· 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.


How to Request a “Transfer of Underlying Basis”:


You must request in writing that USCIS transfer the underlying basis of your pending Form I-485 to another immigrant category.


· If you are requesting to transfer your underlying basis to a previously filed and approved Form I-140, you should also submit a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) with your written request to transfer the basis of your Form I-485. The Supplement J confirms the validity of the job offer associated with the immigrant petition you want to use as the basis for your transfer request. If you are requesting to transfer your underlying basis to a Form I-140 that remains pending, you do not need to submit a Supplement J.


· If a new Form I-140 is being filed on your behalf and you are eligible to concurrently file, you may request to transfer the underlying basis of your pending Form I-485 to this new petition. The petition must be submitted with a signed letter requesting that your pending Form I-485 be transferred to the new petition. It should include a coversheet (preferably highlighted with colored paper) stating “REQUEST FOR TRANSFER OF PENDING FORM I-485 [receipt number] TO ENCLOSED PETITION.” You should include a copy of the Form I-485 receipt notice as well as evidence of eligibility in the new immigrant category. You do not need to submit a Supplement J.


Where to File:

USCIS has created a new centralized location for receipt of transfer requests that are accompanied by a Supplement J. Through Sept. 30, 2022, you may submit your request, accompanied by a Supplement J, to the address below. USCIS will only accept requests accompanied by a Supplement J at this address:


Attn: I-485 Supp J U. S. Department of Homeland Security USCIS Western Forms Center 10 Application Way Montclair, CA 91763-1350

Note: All transfer requests sent to the new address before March 4, 2022 will be processed by USCIS, even if they were not accompanied by a Supplement J.


All employment-based transfer requests that are not accompanied by a Supplement J should be submitted in writing to the USCIS office with jurisdiction over the pending Form I-485. Applicants may determine the USCIS office with jurisdiction over their application by referring to any receipt or transfer notices they have received, or by reaching out to the USCIS Contact Center at 800-375-5283.


Transfer requests accompanying a newly filed Form I-140 should not be sent to the address above or to the USCIS office with jurisdiction over your application, but instead should be sent to the normal filing location for the Form I-140. Please check the Direct Filing Addresses for Form I-140 page on the USCIS website.


Additional Guidance from USCIS:


· You do not have to submit a new adjustment of status application or filing fee with a request to transfer the underlying basis of your Form I-485 from one petition to another. Submitting a new adjustment of status application is not required to transfer the underlying basis of a pending Form I-485 and will not result in faster adjudication of the benefit request.


· The written request to transfer the underlying basis should at a minimum contain sufficient information for USCIS to identify the pending Form I-485 and the immigrant petition that you would like to use as the new basis for your application (for example, receipt number or A-Number).


· If you are requesting a transfer of underlying basis through the new address, you should not submit medical examination forms with the request. If a medical examination form is required, USCIS will issue a Request for Evidence (RFE).


· You may transfer the underlying basis of your Form I-485 from a pending petition to a previously approved petition. However, you must confirm the validity of the job offer associated with the previously approved petition before your Form I-485 application may be approved. To avoid processing delays (such as a request for evidence), you should submit a Supplement J with your transfer request.


· If USCIS grants your request to transfer the underlying basis of your Form I-485 to a different employment-based category, the transfer request resets the 180-day clock for eligibility for the portability provisions of the American Competitiveness in the Twenty-First Century Act.

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