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.