Employment-Based Preference Visa: Transfer Underlying Basis for Pending Green Card Application

Jackson Lewis P.C.
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For the first time, USCIS has advised people with a pending green card application of its documentary requirements for transfers between employment-based classifications and issued an alert regarding the process.

The “exceptionally high number of employment-based [immigrant] visas available this fiscal year” has prompted USCIS to encourage U.S. employers petitioning for employees to utilize either the first or second employment-based preference categories. This is a big change from one-and-a-half years ago.

In October 2020, the government inverted the availability of immigrant visas, making several hundred thousand, mainly Indian, employees in the U.S. eligible to apply for a green card based on the employment-based third preference category. For this blog, the focus is on the second and third employment-based visa classifications. The second employment-based preference category (EB-2) is for employees with an advanced degree or a bachelor’s degree and at least five years of progressive experience in their profession, or those with “exceptional ability.” The third employment-based preference category (EB-3) is for employees with at least a bachelor’s degree (as well as certain skilled or unskilled workers).

USCIS also strongly encourages people with a pending green card application in the EB-3 category to transfer the underlying basis of their pending green card (adjustment of status) application to the EB-2 category if they are eligible to do so — meaning they have an approved or pending Immigrant Petition for Alien Worker in the EB-2 classification (USCIS Form I-140). This process of transferring the underlying basis of a green card application, also called “interfiling,” has been misunderstood. Although USCIS lays out guidelines for an interfile request in its Policy Manual, the agency has not previously provided specific documentary requirements for transfers between employment-based classifications. Now, USCIS clearly declares that an interfile request must be made in writing and must include USCIS Form I-485 Supplement J.

Form I-485 Supplement J has two uses: one is for “Confirmation of Bona Fide Job Offer,” the other is “Request for Job Portability Under INA Section 204(j).” When an applicant files an I-485 J to change the underlying basis of a green card application or interfile, they are using the I-485 J as a Confirmation of Bona Fide Job Offer. What is the job offered? That is the one in the PERM labor certification that was the basis of the employer’s petition for an immigrant worker, Form I-140.

This means that if someone has changed employers after applying for their green card (and followed regulations regarding portability of the permanent job offer), their new employer cannot file an I-485 J to change the underlying basis to a prior employer’s I-140 petition in EB-2 classification. Interfiling is not an option for this employee, as their new employer did not file their EB-2 petition; a prior employer did. There are other circumstances when interfiling is not an option, and other cases when an I-485 J may be required for a different purpose.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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