USCIS recently issued multiple statements encouraging applicants for permanent residence to request a change in the underlying basis of their green card applications. These unprecedented announcements are particularly important for adjustment of status applicants from countries that have a high volume of immigration and related immigrant visa issuance backlogs to the U.S., such as India and China. For the past several years, many individuals from these countries were able to file applications for permanent residence in the employment based third preference category. However, visa availability in the third preference category has now slowed down, resulting in a halt to the adjudication of their permanent residence applications. While forward progress in the employment based third preference has stopped, the availability of immigrant visas in the employment based second preference category has progressed significantly. USCIS’s recent announcements provide guidance regarding how applicants for permanent residence can take advantage of the faster processing times in the employment based second category. The following FAQ’s clarify important points that individuals should know when deciding whether to request a change in the underlying basis of their applications for permanent residence.
Q. Am I eligible to switch employment based categories?
A. An individual may request a change in the underlying basis of their applications for permanent residence if they have a previously approved Petition For Alien Worker (Form I-140) in the employment based second preference category or if they are eligible for EB2 classification in the employment based second preference category and their employer submits a new I-140 on behalf of the employee. In addition, the applicant must continue to be eligible for permanent residence based on the approved EB2 petition. In other words, the job opportunity that is described in the EB2 I-140 must still be available to the applicant.
Q. Is A New Fee Required?
A. Generally, a new adjustment application or filing fee is not required, with the exception of certain individuals who have not maintained valid nonimmigrant status since their initial arrival in the U.S.
Q. How Do I Request That USCIS Change The Basis Of Eligibility With Regard To My Pending Adjustment Of Status Application?
A. An applicant must must submit a written request to USCIS to change the basis of eligibility. This written request can be done at any time while the foreign national’s Adjustment Of Status Application is pending – even at an adjustment of status interview.
Q. My spouse and children applied for permanent residence as my dependents. How do I include them in my request to change the underlying basis?
A. All dependent family members who have pending adjustment applications must be identified in the written request to USCIS, and their USCIS receipt notices pertaining to their pending applications must be provided.
Q. My company is in the process of filing a new I-140 on my behalf and my priority date is current under Final Action Dates. Is it possible to switch the underlying basis of my pending adjustment application to this newly filed I-140?
A. Yes. Along with the submission of the I-140, you must submit a written request to USCIS to switch the underlying basis of your pending adjustment of status application, along with the USCIS receipt notice for both the previously filed I-140 and I-485, and a newly completed Form I-485 Supplement J.
Q. My employer’s I-140 to request EB2 classification is pending. Is it possible to request a change in the underlying basis of my application for permanent residence?
A. Yes, provided that your priority date is current under the Final Action Dates for this month. Prior to adjudication of an adjustment application, USCIS may allow the applicant to transfer a pending adjustment application to a different petition or employment based preference category basis regardless of whether the petition that forms the new basis for the pending adjustment application has already been approved or is pending. You must submit a written request to USCIS, along with evidence of your pending adjustment of status application and Form I-485 Supplement J.
Q. I would like to transfer the basis of my eligibility to an approved I-140. Is this possible?
A. Yes, provided that your priority date is current under Final Action Dates for this month.
Q. What happens to the petition that was previously submitted to USCIS and enabled me to apply for permanent residence initially?
A. USCIS will only consider an adjustment applicant’s eligibility for permanent residence under one petition. Therefore, if USCIS agrees to your request to change the underlying basis of your application for permanent residence, the Service will set the previously filed petition aside.
Q. Upon submission of my request to change the underlying basis of my application for permanent residence, are there restrictions to my ability to change jobs?
A. USCIS policy states that an employee is not allowed to change employers for at 180 days after requesting a change in the underlying basis of their application for permanent residence. After 180 days, the applicant may only change jobs provided that the new job is in the same or a similar occupation to the position described in the approved EB2 I-140.
Please note that this set of FAQs does not constitute legal advice. For an assessment of your eligibility to change the underlying basis of your application for permanent residence, please contact Maggio Kattar to schedule a consultation with an Attorney.