After the release of the March 2022 Adjustment of Status Filing Charts from the Visa Bulletin, US Citizenship and Immigration Services (“USCIS”) issued an alert urging eligible adjustment of status (“AOS”) applicants to consider filing a request to transfer the underlying basis of their adjustment of status application. According to USCIS, eligible applicants should request to transfer 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).” USCIS noted that the overall number of visas available for the first and second preference employment-based categories is almost “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 light of the fact that the Service, along with the US Department of State, are “committed to attempting to use all these visa numbers,” USCIS has posted guidance for transferring the underlying basis of pending AOS applications (Form I-485). Commonly known as “interfiling,” this process allows I-485 applicants to upgrade or downgrade between immigrant visa categories. At this time, interfiling can aid second employment-based preference category (“EB-2”) adjustment applicants who downgraded to third employment-based preference category (“EB-3”) when filing for AOS, whose applications are still pending due to the visa number retrogression in the EB-3 category, and who now have a priority date that has become current in the EB-2 category.

Requests to interfile must be made in writing directly to USCIS, and the Service may, in its discretion, grant a transfer request if the following criteria are met:

The AOS applicant has continuously maintained eligibility for adjustment of status;
The applicant’s adjustment of status application based on the original Form I-140 is still pending;
The applicant is eligible for the new immigrant category; and
The applicant has a visa immediately available in the new immigrant category.

Unfortunately, these visas cannot be made available to applicants in the EB-3 category because, due to the significant number of noncitizens awaiting visas in the EB-2 category, the “visas are required by statute to be used for the second preference category.”