The USCIS has given advice to people who have an application pending for a green card concerning the documents required to transfer between different employment-based classifications. This is unprecedented and the first time the USCIS has done this, and they have even issued an alert about this situation.
There are a vast number of employment-based visas available for the current fiscal year. Therefore, the USCIS is encouraging employers in the US who are petitioning for their employees to make use of the first or the second categories of employment-based preferences.
The government changed the availability of immigrant visas in October of 2020 by allowing several hundred thousand predominantly Indian employees working in the United States eligible to apply for a green card based off of the employment-based third preference category. Although in this article, we are going to be discussing both the second and third employment-based preference categories.
The second employment-based category (EB-2) is used for employers who want to employ foreign workers who have advanced degrees or a bachelor’s degree and five or more years of progressive experience in their field or exceptional ability. The third employment-based category (EB-3) is used by employers that want to obtain foreign workers with a minimum of a bachelor’s degree or certain unskilled or skilled workers.
The USCIS is also encouraging people who have an application pending for a green card in the EB-3 category to adjust the status of their application to the EB-2 category if they have a pending or approved immigrant petition for an alien worker in the EB-2 classification. Doing this transfers the underlying basis of the person’s green card application. This is called interfiling, and the USCIS has previously not specified the documents necessary to do this. However, the USCIS has now stated that an interfiling request needs to be in writing and include USCIS Form I-485 Supplement J.
Form I-485 Supplement J is used for two different purposes. It can be used for “Confirmation of Bona Fide Job Offer” or “Request for Job Portability Under INA Section 204.” If an applicant is filing Form I-485 Supplement J in order to interfile or change the underlying basis of a green card application, the form is being used for a “Confirmation of Bona Fide Job Offer.” The job being offered would be the job that was contained in the perm labor certification. This job was the basis of the employer’s petition for an immigrant worker, Form I-140.
A new employer cannot file an I-485 J to alter the underlying basis of a previous employer’s I-140 petition in EB-2 classification. There are other situations in which interfiling would not be an option. Additionally, there will also be situations in which it may be necessary to file an I-485 J for another reason.
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