USCIS is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application to the first or second employment-based preference categories, because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (Oct. 2021 through Sept. 2022).
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.
In addition, under the relevant statute, any visas not required in the fifth employment-based preference category are made available in the first employment-based preference category, and any visas not required in the first employment-based preference category are made available in the second employment-based preference category. These visas cannot be made available to applicants in the third employment-based preference category because, given the significant number of noncitizens awaiting visas in the second employment-based preference category, these visas are required by statute to be used for the second preference category.
If you have a pending adjustment of status application in the third employment-based preference 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 the first or second employment-based preference categories, USCIS strongly encourage 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. Making such a request is the decision of each applicant and should be made based on your particular circumstances.
Who Can File: 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 File: 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 The content on this website is provided for general informational purposes only and does not constitute legal advice. Viewing this website or contacting our office does not create an attorney-client relationship.