Transfer of Underlying Basis: Changing from EB-3 Downgrade Back to EB-2

March 1st, 2022

The past two years have seen massive swings in the Visa Bulletin, particularly for categories EB-2 and EB-3 for foreign workers from India. In October 2020, EB-3 dates for filing were well ahead of EB-2 dates for India, which led many people who had an approved EB-2 I-140 to file a downgrade I-140 (EB-3) petition along with an I-485 adjustment of status application. Now that the Visa Bulletin has swung back to EB-2 India dates being ahead of EB-3, many foreign nationals from India are wondering if it is possible to change the basis of their I-485 from the EB-3 downgrade to the earlier approved EB-2 I-140. USCIS has published guidance about the suggested procedures for “transferring the underlying basis” of the I-485, but there are still some unanswered questions and potential pitfalls that should be reviewed prior to pursuing the transfer.

USCIS Guidance on Transferring the Underlying Basis

In January 2022, USCIS posted new instructions for requesting a transfer of underlying basis for a pending I-485 in employment-based contexts. In this guidance, USCIS noted that there are “exceptionally high” numbers of employment-based visas available this fiscal year (which ends September 30, 2022), and USCIS is encouraging people with pending I-485s based on an EB-3 petition to transfer the basis of that I-485 to EB-2 if they are eligible. USCIS may use its discretion to grant a transfer request where:

  • You have continuously maintained eligibility for adjustment of status;
    • USCIS has clarified that having failed to maintain an underlying nonimmigrant status (such as H-1B) since filing the I-485 does not disqualify someone from pursuing a transfer of underlying basis.
  • 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.
    • This means that your EB-2 priority date needs to be current under the Final Action Dates chart in the Visa Bulletin.

Requests to transfer the underlying basis from one employment category to another must be made in writing and accompanied by a completed I-485J if the I-140 you are transferring to has already been approved. Requests must be sent to the following address no later than September 30, 2022:

Attn: I-485 Supp J
U.S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350

USCIS has stated that no confirmation of receipt will be sent for the transfer request, but receipt notices will be issued for the new Supplement J. Expected processing times for a transfer request have not been disclosed, and it is quite possible that it may take several months for USCIS to approve the transfer request and issue the green card under EB-2.

Potential Issues with a Request to Transfer Underlying Basis

Despite USCIS’s encouragement to transfer from EB-3 back to EB-2, this is not advisable in all situations. Some circumstances that could make a transfer request inadvisable include:

You have changed jobs since the I-485 filing using the AC21 portability provisions.

  • USCIS has stated that requesting a transfer of underlying basis will restart the 180-day clock for portability. In other words, USCIS’s position is that you would need to wait another 180 days after the transfer request to be able to use the portability provisions. While some practitioners disagree with USCIS’s interpretation, requesting a transfer of underlying basis after you have used the portability provisions has several risks. These include:
    • If you fill out the Supplement J and have it signed by the EB-2 I-140 employer for inclusion in your transfer request, even though you no longer actually intend to work for that I-140 employer, USCIS could find that you have made a misrepresentation which would bar you from receiving a green card. When you sign the Supplement J, you are certifying that the I-140 employer continues to have a job offer for you and that you intend to accept that job offer once your I-485 is approved. If you are no longer working for the I-140 employer and have no intention of returning to the I-140 employer, you should not turn in a Supplement J with that employer because of the risk of a fraud/misrepresentation finding.
      • Keep in mind that when you apply for U.S. citizenship, USCIS will again review your employment history and your pathway to receiving a green card. Questions about your intent to work for the I-140 employer could surface at the citizenship stage, and if USCIS concludes that you misrepresented your intent to return to the EB-2 I-140 employer, they could initiate removal proceedings.
    • If you try to have a transfer of underlying basis approved without turning in a Supplement J (because you do not want to attest to intent to return to that I-140 employer) there is a risk. Specifically, even if USCIS approves the transfer now and issues the green card under EB-2, USCIS could later declare that the green card was issued in error (because of the lack of a Supplement J) and initiate removal proceedings.
      • In cases where USCIS believes a green card was issued in error, they can later seek to rescind the green card (if they catch the error within 5 years) and initiate removal proceedings (possible in most Circuits even if the error is caught after 5 years). For this reason, it is not advisable to attempt to get a benefit from USCIS without including all of the forms/documents that they have said are required. Particularly if the Supplement J was not included because the applicant had left the EB-2 employer and there was no longer a bona fide job offer and/or intent to accept that job offer, recission of the green card later by USCIS would be a real threat.
    • Some practitioners are advising applicants to seek a transfer of underlying basis in portability situations with the thought that “the worst thing that can happen is that USCIS denies the transfer request.” As described above, the actual worst-case scenario would be that USCIS approves the transfer request and later seeks to rescind the green card on the basis that the green card was improperly granted. Such situations can be extremely stressful, as relief in removal proceedings may be limited, especially for those without a spouse or parent with U.S. citizen/LPR status. It is recommended that you talk with an experienced immigration attorney to weigh the risks before pursuing a transfer of underlying basis if you have used portability provisions to change jobs since filing the I-485.

You are thinking of changing jobs in the near future.

  • As described above, USCIS has stated that filing a request to transfer the underlying basis of your adjustment application will restart the portability clock. That means that for 180 days after USCIS receives your transfer request, you will not be able to change employers without endangering your green card. As the priority date must be current under the final action dates chart in order to request the transfer of underlying basis, it is quite possible that the green card will be issued before the portability clock reaches a new 180 days (which means you would need to work for the EB-2 I-140 employer upon green card issuance to be in compliance with the green card rules).
  • In short, because the transfer of underlying basis restarts the 180-day clock for portability, if you are considering changing jobs in the near future you may want to avoid filing the transfer request so that you can maintain your ability to port to a new job in the same occupation. Once you file the transfer request, it is very unlikely that it can be undone, and it is important to be aware of the bar on job changes that filing the transfer of underlying basis request will create for the next 180 days.

Your EB-2 I-140 employer has undergone a merger or been acquired, such that successor-in-interest arguments would need to be made.

  • USCIS has not issued any guidance yet specific to transferring the underlying basis of an I-485 where the job offer now comes from a new employer who has acquired or merged with the I-140 petitioner (known as a successor-in-interest merger). USCIS procedure for approved I-140s where there now is a successor-in-interest employer is for the successor-in-interest to file an amended I-140 and submit documentation showing the qualifying relationship between the original petitioner and the successor-in-interest employer. It is possible, therefore, that in situations where the EB-2 I-140 was filed by a company that has since been acquired, USCIS would want the successor-in-interest to file an amended EB-2 I-140 petition before approving the transfer of underlying basis request. In other words, it may not work to have the successor-in-interest employer simply fill out the Supplement J – USCIS might instead want the successor-in-interest to do an I-140 amendment petition establishing that they qualify as a successor-in-interest and then have the transfer request be filed later based on this new amended I-140.
    • Although Binsfeld Law Firm has had success amending an EB-2 I-140 with Premium Processing in this type of situation, this is not always guaranteed. If USCIS does not grant the Premium Processing request (which usually happens if the original certified ETA-9089 is not at the office where the amendment is filed), then the amendment will likely be pending past September 30, 2022.
  • As with the portability issues detailed above, there is risk in trying to transfer to a prior EB-2 I-140 where the employer has changed due to a successor-in-interest situation without following USCIS’s procedures including the I-140 amendment petition. Specifically, the biggest risk is that if USCIS approves the transfer/issues the green card without the amended I-140 and later concludes that this grant was in error (because an amended I-140 petition was required), the green card holder would be subject to recission of the green card (which USCIS can do at any point within 5 years of issuance) and/or removal proceedings (which remain a threat even after the 5 year recission period in most Circuits). It is recommended that you talk with an experienced immigration attorney to weigh the risks before pursuing a transfer of underlying basis if your EB-2 I-140 employer has undergone a merger/acquisition such that the company info (name, FEIN, etc.) has changed since the I-140 filing. The situation should be evaluated to determine both if the new company qualifies as a successor-in-interest and if an amended I-140 would be advisable prior to requesting the transfer of underlying basis.

In sum, while in many cases transferring the underlying basis of an I-485 to an approved EB-2 I-140 will help to obtain a green card faster, there are risks in requesting this transfer, particularly if you have changed employers, are thinking of changing employers, or the employer has undergone a merger/acquisition. If you’d like to schedule a consultation with Binsfeld Law Firm to discuss any of these issues, please call us at 612-339-0033.

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