February 7, 2023

Volume XIII, Number 38

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February 06, 2023

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USCIS: Exceptionally High Number of Employment-Based Visas Available

U.S. Citizenship and Immigration Services (USCIS) has announced that it is strongly encouraging applicants for adjustment of status (Form I-485) in the employment-based third preference category, if they are eligible to do so, to transfer the underlying basis of their applications to the first or second employment-based preference categories. This is because there are an “exceptionally high number” of visas available in those categories for the current fiscal year (October 2021 to September 2022) – twice as high as usual. USCIS’ encouraging announcement is in line with the Biden Administration’s mission to eliminate barriers and not let immigrant visas go to waste.

This surplus is the result of approximately 140,000 family-based visas (along with some first and fifth preference employment-based visas) going unused last year and, due to statutory limitations, they cannot be used for those in the third preference employment-based category.

To be eligible to transfer the underlying basis of their Form I-485, applicants must meet the following criteria:

  • Continuously have maintained eligibility for adjustment of status;

  • Have already filed a Form I-485 that is pending based on a different I-140 in a classification that is not current, e.g., EB-3;

  • Be eligible for the first or second preference category; and

  • Have a current priority date current in the new category.

Those who are requesting a transfer of the underlying basis of the I-485 to a previously filed and approved Form I-140 must also file a completed Form I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under Section 204(j), along with the written transfer request. If the previously filed petition is pending, the Form I-485 Supplement J is not required.

There is a complex web of requirements that must be followed in terms of evidence, and filing locations vary depending on the circumstances of the application. There can also be pitfalls. For instance, the position that will form the basis for the transfer must be the same position the applicant will assume when the adjustment is approved or a position to which the applicant is portable.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 56
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About this Author

Beth E. Boyer  Associate Jackson Lewis P.C. Immigration
Associate

Beth E. Boyer is an Associate in the White Plains, New York, office of Jackson Lewis P.C. Ms. Boyer practices immigration law exclusively. Ms. Boyer counsels employers on a variety of immigration issues, helping employers to meet the legal and practical challenges posed by immigration laws administered by the Department of Homeland Security as well as the Department of State and Department of Labor.  In addition to counseling employers regarding their immigration matters before the U.S. Citizenship and Immigration Service, Ms. Boyer represents management in cases before U.S....

914-872-8019
Sarah P. Caze Labor & Employment Attorney Jackson Lewis Law Firm White Plains, NY
Associate

Sarah P. Caze is an Associate in the White Plains, New York, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

While attending law school, Ms. Caze was a Pro Bono Scholar and served as the Solicitations Editor for the Journal of International Business and Law. She competed at the National Moot Court Competition, as well as the Willem C. Vis International Commercial Arbitration Moot in Vienna. 

914-872-8060
Marko C. Maglich, Jackson Lewis, Merger transactions attorney, workplace enforcement lawyer
Principal

Marko C. Maglich is a Principal in the White Plains, New York, office of Jackson Lewis P.C. Prior to joining the firm, he directed the corporate U.S. immigration practice of a large international law firm.

Mr. Maglich practices immigration law exclusively, and is a member of the firm’s Immigration practice group. Mr. Maglich’s practice deals with all aspects of business-related visas, compliance by employers and individuals with U.S. immigration law (including in M&A transactions and workplace enforcement), and in...

914-872-8060
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