UPDATE ON USCIS’ ALERT ADVISING CERTAIN AOS APPLICANTS TO CONSIDER UPGRADING FROM EB-3 TO EB-2
by Rabindra Singh
Confirming that an exceptionally high number of employment-based immigrant visas are available this fiscal year (October 2021 through September 2022), recently USCIS posted an alert advising certain Adjustment of Status (AOS) applicants to consider upgrading from EB-3 to EB-2 preference classification.
After the alert’s posting, American Immigration Lawyers Association (AILA) reached out to USCIS on a number of questions. Based on initial discussions with USCIS, AILA provided the following information. We expect formal guidance from USCIS in the coming days.
Question: Does filing the transfer request with the Supplement J restart the 180-day portability clock?
USCIS Response: Yes. For purposes of portability, you would restart the portability clock on the day we receive the transfer request.
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?
USCIS Response: 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.
We will continue to monitor and share updates pertaining to the alert issued by USCIS on January 21st, 2022.
You may contact our office at (312) 291-1234 for any questions related to the process for transferring the underlying basis of Form I-485 to a different employment-based immigrant category based on another Form I-140.