U.S. Citizenship and Immigration Services encourages eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application to the first (priority workers) or second (noncitizens in professions with advanced degrees or with exceptional ability) employment-based preference categories, because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (October 2021 through September 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.
Transfer of Underlying Basis” Between Employment-Based Categories
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, we 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 AOS 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.
Source: USCIS [PUBLIC.GOV.DELIVERY]