February 03, 2022
Transferring the Underlying Basis* of an I-485 application to a Different Employment-Based Immigrant Category
This message is meant only for those clients who are considering transferring the underlying basis of their Adjustment of Status Application from one category or petition to a different category or petition. If that does not apply to you, you may ignore this message.
On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 Adjustment of Status (“adjustment”) to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis 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.
Requests to transfer the underlying basis must be made in writing to a new USCIS contact address in California. Only one petition may form the basis of an adjustment application at any given time. The applicant must clearly designate in writing which petition serves as the new basis of the adjustment application. A Form I-485, Supplement J should also be included if applicable. USCIS will not provide a written response to transfer of underlying basis requests, but it will issue a receipt notice for a Supplement J.
Once an applicant makes a request to transfer a pending adjustment application from one basis to another and if the transfer request is granted, the original petition no longer supports the adjustment application.
So long as the adjustment application is still pending, USCIS may allow the applicant to transfer a pending application to a different/new I-140 petition or basis. The new I-140 petition may either be approved or still pending. However, once a final decision has been made on an adjustment application, a transfer cannot be granted.
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 employment-based second preference category, you are strongly encouraged to request that USCIS transfer the underlying basis of your pending application to the EB-2 petition. Please contact our office if you would like us to review your case, or if you would like assistance with the transfer request.
* (Please note that the “transfer of underlying basis” and “interfiling” refer to the same process.)