Update 06/28/2022
We are now seeing the results of the requests to transfer the underlying basis (“relink”). We started filing the requests in February. Below is a sample.
In addition to sending out the written request to relink, our advice is to follow up on that request by calling USCIS and initiating a service inquiry.
Client has both I-140 EB2 and I-140 EB3.
- I-140 485 EB3 Concurrent Filing Receipt Date: 10/28/2020
- I-140 EB3 Approval Date: 04/13/2021
- I-485 RFE for Medical: 08/03/2021
- Request to relink I-485 to EB2: 02/09/2022
- Case transferred from TSC to NBC: 04/20/2022
- Called USCIS for relink: 05/18/2022
- Online case status shows service request has been completed: 06/23/2022
- I-485 Approved: 06/25/2022
Update 06/22/2022
USCIS finally clears up some confusion. As shown in our earlier post, you may still see the same case update below even after USCIS receives your request to transfer the underlying basis of your Form I-485.
“We are temporarily pausing work on your application because an immigrant visa number is not immediately available to you. Once an immigrant visa number becomes immediately available to you, we will resume processing of your application.”
USCIS also clarified that confirmation related to your request to transfer the underlying basis comes from the I-485 supplement J receipt. If you submitted a Form I-485 Supplement J to the Western Forms Center to make a transfer request — While USCIS previously experienced delays in processing receipt
notices for Supplement Js filed with the Western Forms Center, it is now processing receipt
notices within two weeks.
Finally, USCIS is still trying to address I-485s pending outside of published processing time. This is an ongoing issue. Also, do not submit I-693 until specifically requested to do so via RFE.
Update 05/17/2022
USCIS is now showing new case status updates relating to pending I-485. Specifically, it will now tell you if your I-485 is put on hold due to visa number retrogression.
The crazy part is that the update for this case is incorrect. We had filed a request to transfer the underlying basis from EB3 to EB2 and have already received the I-485 J receipt (see earlier update). Visa number is current under EB2. Obviously, this whole transfer of the underlying basis is not working well.
Update 05/09/2022
We are now receiving I-485 J receipt notices as a result of the “transfer of underlying basis” requests filed in January 2022. Some samples:
A few observations:
Not seeing any immediate impact for transfers of “retrogressed” EB3 to “current” EB2. The issuance I-485 J receipt notice by itself does not mean the relink has been completed. So, still waiting for I-485 adjudication.
We have clients who decided to do the transfer of the underlying basis despite both EB3 and EB2 I-140 being current. In one example, the I-485 still linked to EB3 was approved in April (after the transfer request was filed). Yet, the I-485 Supp J was still issued. Very odd and does not seem like the system is efficient.
In short, filing transfer of underlying basis when both EB3 and EB2 I-140s are also current will do no harm or good.
Update 04/11/2022
Among the requests for transfer of underlying basis that we filed since January, we have not heard back anything yet from California.
USCIS has also shed light on a concern from many who filed their I-140 / 485 concurrently but had amended their I-140.
The question is: If an EB-3 downgrade is filed concurrently with a Form I-485 and that EB-3 downgrade is approved as an “amendment” to a prior approved EB-2 petition, can that prior EB-2 petition later be used to transfer the basis of the pending I-485 back to the (now amended) EB-2 petition?
USCIS Answer: When a Form I-140 is approved as an amendment changing from EB-2 to EB-3, there is no longer an EB-2 petition. There is only an EB-3 petition. By contrast, when a Form I-140 is filed as a “new” petition seeking a change from EB-2 to EB-3 and approved, there is then an approved EB-2 and an approved EB-3 petition allowing the change in the basis of a pending I-485. Therefore, it is the agency’s position that because the underlying I-140 petition was amended from an EB-2 to an EB-3 and the original EB-2 no longer exists, the petitioner cannot transfer the adjustment of status to the original EB-2 but must instead file a new EB-2 petition.
In short, when you “amend” an I-140, you are stuck with one I-140.
Update 01/28/2022
The filing address for submitting the request for “transfer of underlying basis” is:
Attn: I-485 Supp J
U. S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350
For those who have previously initiated a transfer, re-link, or interfiling request, there’s no need to submit a new to the above address. As indicated by USCIS, all requests to transfer the underlying basis already received or that will be received this fiscal year at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.
Below are some Q&A from AILA.
- Question: Can an individual do an interfiling if they are not in nonimmigrant visa (NIV) status? For example, can they be in a period of authorized stay and have a (c)(9) EAD?
Answer: The applicant does not need to be in NIV status. They need only be in lawful status when they filed the I-485 adjustment of status application. If they have stopped being in status, it does not affect their ability for eligibility to interfile. As long as the I-485 remains pending they remain in exactly the same position with respect to INA section 245(c). - Question: Will USCIS move ahead with an adjudication of an I-485 application with an approved I-140 petition, even if there is another I-140 petition pending? Specifically, does the existence of the new I-140 petition, even if not specifically tied to the I-485, halt the adjudication of the case?
Answer: The existence of another pending I-140 petition does not matter to the adjudication of the I-485 based on an already approved I-140. Despite language in the USCIS Policy Manual, AILA understands that an applicant may transfer to any previously approved I-140 petition provided they confirm the validity of the job offer by submitting a Supplement J, even if a downgrade request is pending. - Question: Does filing the transfer request with the Supplement J restart the 180-day portability clock?
Answer: Yes. For purposes of portability, you would restart the portability clock on the day we receive the transfer request.
Original Post 01/25/2022
On 01/21/2022, USCIS issued an alert which stated the following:
ALERT: There are an exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022).
There are an exceptionally high number of employment-based visas available this fiscal year (October 2021 through September 2022). In partnership with the U.S. Department of State, we are committed to attempting to use all these visa numbers. There are many more visas available in the first (priority workers) and second (workers with advanced degrees or of exceptional ability) employment-based categories than pending adjustment of status applications pending with USCIS.
If you are eligible, please consider applying in the first or second employment-based preference categories. If you have a pending adjustment of status application based in the third employment-based preference category but also have a pending or approved petition and an available visa in the second employment-based preference category, we strongly encourage you to request that USCIS “transfer the underlying basis” of your pending application to the second employment-based preference category.
For more information, please see the section called “Transfer of Underlying Basis” on the Green Card for Employment-Based Immigrants page on our website.
https://www.uscis.gov/green-card/green-card-eligibility-categories
This led to a frenzy of inquiries regarding how soon pending green card cases will be adjudicated and whether they should request “transfer of underlying basis”.
First off, the “transfer of underlying basis” is not new. There has always been a procedure to re-link the pending I-485 from an approved I-140 under one employment category to a new I-140 under a different category. Applicants often request to re-link their I-485 from I-140 EB2 to I-140 EB3 when the visa number under the latter becomes more favorable, hence the process is often referred to as a downgrade. There are other commonly used terms describing the same process such as re-linking and making an interfiling request.
Second, hyping up the number of employment-based visas available is not helpful when the real issue is not addressed. Note the words they are using, “we are committed to attempting to use..”. These are empty words. They make you feel like something is going to happen but nothing substantive is mentioned. The real issue here is that USCIS does not have enough resources to adjudicate the growing number of applications.
USCIS does not need to encourage applicants to apply. They are way ahead of you on that. But USCIS must do more than just stay committed. They must increase their bandwidth to handle the record number of GC applications that are currently pending. We have not seen reports that would indicate they are recruiting more officers to adjudicate the growing caseload. Some have observed job recruitment sites recently and have not noticed hiring increases at USCIS.
So what does all this mean? If you have a pending I-485 and it’s currently tied to an I-140 EB3 and a visa number is current to you under this category, then everything is in check and your case is simply waiting for an officer to adjudicate the application. Even if you have a second I-140 that is also “current” under EB2, your pending I-485 remains ready for adjudication. The fact that you have been waiting for months for a decision means that there is not enough manpower to process the green card application. But for the lack of available adjudicating officers, your case would have been adjudicated, whether you have a second I-140 or not.
The alert simply asks applicants in the above scenario to “pls consider” re-linking or using their new term “transfer the underlying basis” from EB2 to EB3 without providing an ounce of explanation for why they should do that. Should they transfer if visa numbers under both categories are current? Are they putting more resources to I-485s that are tied to EB2? We highly doubt that’s true because USCIS has not increased its adjudication resources. And even if it’s true it would be completely unfair to increase resources only for EB2 and putting I-485 EB3 applicants at a disadvantage if their visa numbers are also current.
To be clear, we do not know exactly what the alert entails or whether there will in fact be substantive changes in the future. We understand many would want to take up on USCIS’ offer including many of our own clients. However, it’s important to calibrate expectations here as many may not receive the fast and sure results they may be expecting.
Also, note that if you have both EB3 and EB2 and only the visa number under EB2 is current to you, then it makes more sense to relink the pending I-485 from EB3 to EB2 as the delay is no longer due solely to a lack of reviewing officers but also lack of visa availability.
Nevertheless, we will surely provide updates as soon as we see any positive results from these “transfer of underlying basis” requests.