Adjustment of status, transferring the basis of I-485 clarifications

September 9, 2022:
Important FAQ from the USCIS about what to expect during this fiscal year #immigration
https://www.immigration.com/blogs/fiscal-year-2023-employment-based-adj…

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On January 21, 2022, USCIS published the following information on its website, which we have edited to provide clarifying remarks:

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:

• You have continuously maintained eligibility for adjustment of status;
• 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 (The priority date must be current under the Final Action Dates chart).

You must request in writing that USCIS transfer your pending Form I-485 from one basis to another category. For the Fiscal Year 2022 (Fiscal Year ends on September 30, 2022), USCIS has created a new point of contact that should be used to request a transfer of the underlying basis of employment-based Form I-485s. Through September 30, 2022, you may submit your written request, with a completed I-485 Supplement J, Confirmation of Bona Fide Job Offer, or Request for Job Portability Under INA Section 204(j) (if required), to the following address:

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

USCIS strongly encourages applicants to send their transfer requests to the above address.  If you have already submitted a transfer of underlying basis request to a USCIS office, you should not submit a new request to this address. All requests to transfer the underlying basis already received or that will be received this fiscal year at a USCIS office will be processed as usual by the USCIS office with jurisdiction over your pending Form I-485.   

The purpose of Supplement J is to confirm the validity of the job offered to you in the petition you want to use as the basis for your transfer request.

• If you are requesting to transfer your underlying basis to a previously filed and approved Form I-140, you must submit I-485 Supplement J with your transfer request.
• If you are requesting to transfer your underlying basis to a Form I-140 that remains pending, you do not need to submit I-485 Supplement J.

USCIS does not provide a written response to transfer requests.  However, USCIS will issue receipt notices for Supplement J.

You do not have to submit a new adjustment of status application or filing fee with a request to transfer the underlying basis of your Form I-485 from one petition to another. For more information on transferring the underlying basis of your Form I-485, see the USCIS Policy Manual.

Whether USCIS will grant or deny a transfer request is a matter of discretion. For more information about transferring the underlying basis of Form I-485, see the USCIS Policy Manual (Volume 7 – Adjustment of Status, Chapter 8 – Transfer of Underlying Basis).

USCIS has provided to AILA the following clarifications, which should be covered by the USCIS in formal guidance soon:
 

Question: Can an individual do an interfiling if they are not in nonimmigrant visa (NIV) status? For example, can they be in a period of authorized stay and have a (c)(9) EAD?

Answer: The applicant does not need to be in NIV status. They need only be in lawful status when they filed the I-485 adjustment of status application. If they have stopped being in status, it does not affect their ability for eligibility to interfile. As long as the I-485 remains pending they remain in exactly the same position with respect to INA section 245(c).

Question: Will USCIS move ahead with adjudication of an I-485 application with an approved I-140 petition, even if there is another I-140 petition pending? Specifically, does the existence of the new I-140 petition, even if not specifically tied to the I-485, halt the adjudication of the case?

Answer: The existence of another pending I-140 petition does not matter to the adjudication of the I-485 based on an already approved I-140. Despite language in the USCIS Policy Manual, AILA understands that an applicant may transfer to any previously approved I-140 petition provided they confirm the validity of the job offer by submitting a Supplement J, even if a downgrade request is pending.

Question: Does filing the transfer request with Supplement J restart the 180-day portability clock?

Answer: Yes. For purposes of portability, you would restart the portability clock on the day we receive the transfer request.

The following questions are presently unanswered:

• Amended petitions: If an EB-3 downgrade is filed concurrently with an I-485 and that EB-3 downgrade is approved as an “amendment” to a prior approved EB-2 petition, can that prior EB-2 petition later be used to transfer the basis of the pending I-485 back to the (now amended) EB-2 petition?
• Family members: What steps, if any, should requestors take to ensure that dependent family members are included in the process?

We will update this page as new information is received.