U.S. Citizenship and Immigration Services (USCIS) updated the website information for Form I-485, Application to Register Permanent Residence or Adjust Status in January 2022 to include information related to green card availability and a process referred to as a “transfer of underlying basis.”

Each year, approximately 140,000 US employment-based immigrant visas (green cards) are made available, and according to the USCIS, there is an “exceptionally high number of employment-based” green cards available for the fiscal year ending in September 2022.  In particular, USCIS states that there are “many more” visas available in the EB-1 and EB-2 category compared to the number of applications currently pending.  Consequently, USCIS advises green card applicants to consider applying under the EB-1 or EB-2 category if eligible, and encourages a transfer of underlying basis where possible.

“Transfer of underlying basis” refers to a process by which USCIS can re-categorize a pending green card application from one preference category to another, e.g. from EB-3 to EB-2.  The requirements for a transfer of basis are outlined in the USCIS Policy Manual.

To be eligible for a transfer of basis from EB-3 to EB-2, the following criteria must be met:

  • The applicant has continuously maintained eligibility for adjustment of status
  • The applicant has a pending adjustment of status application under EB-3
  • The applicant has a pending or approved EB-2 I-140 from the employer they intend to work for once their green card is issued (typically the applicant’s current employer)
  • The applicant’s priority date is eligible for final action in the EB-2 category, as determined by the State Department’s visa bulletin.  The final action date for EB-2 India is January 1, 2013 or earlier in February 2022.

If the requirements above and in the Policy Manual are met, the applicant may request in writing that USCIS transfer their pending green card application from EB-3 to EB-2.  If the request to transfer basis is based on an approved EB-2 I-140, the request must be accompanied by a Form I-485 Supplement J signed by the same employer that filed the EB-2 I-140.  Importantly, if an applicant has an approved EB-2 I-140 from a prior employer only, they are likely not eligible to transfer basis.

Through September 30, 2022, this written request may be submitted to a designated USCIS mailing address.