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IMMIGRATION MARCH 11, 2022 | The Indian Eye 36
huh? Why should requesting a
transfer of underlying Basis with
an i-485 supplement J restart the
180-day portability clock?
BY CYRUS D. MEHTA AND underlying basis request. As a sadly many who could have issuance of this new guidance, should restart upon submission
KAITLYN BOx* background, many India born gotten their green cards when USCIS indicates on its web- of an I-485J when the applicant
beneficiaries are the subject the EB-3 Final Action Date site that a new request should is also requesting a transfer of
e follow up on our of two I-140 petitions in both was January 1, 2014 lost out not be submitted again to the underlying basis from EB-3 to
blog series on re- the EB-2 and EB-2 prefer- when USCIS could not adjust above address”. However, EB-2. It should also be noted
Wquesting a transfer ences. These beneficiaries had these applicants by September anecdotal evidence indicates that many applicants are filing
of underlying basis. Previous employers file I-140s under 30, 2021. The India EB-2 has that many are resubmitting an I-485J for the first time when
blogs on this topic can be EB-3 along with concurrent advanced much further than their request for a transfer of requesting a transfer of basis as
found here and here. Due to I-485 applications when the the India EB-3, which is why underlying basis following this the I-485J was not required at
the exceptionally high num- Dates for Filing in the Octo- many wish to request that the new procedure, even though the time the I-140 under EB-3
ber of EB-1 and EB-2 visas ber 2020 Bulletin advanced I-485 application filed with the they may have previously sent was filed concurrently with the
available this fiscal year, US- further than the EB-2 to Janu- EB-3 I-140 in October 2020 a letter previously requesting I-485 under the October 2020,
CIS is urging applicants to ary 1, 2015, and this trend con- be transferred to the previous- a transfer of underlying basis. November 2020 and Decem-
consider switching to these tinued under the November ly approved I-140 under EB-2. The submission of an I-485J at ber 2020 Bulletins.
preference categories, which 2020 and December 2020 Visa Under the State Department least results in the generation The purpose of the I-485J
will no doubt encourage more Bulletins. There has been March 2022 Visa Bulletin, the of a receipt and an approval. is two- fold: Part 1.a. requires
applicants to file a transfer of a switcheroo since then, and India EB-2 Final Action Date This evidence may allow the the applicant to confirm that
is May 1, 2013 while the applicant to further follow up the employer is offering a
India EB-3 Final Action on the request to transfer un- bona fide job that the noncit-
Date has retrogressed to derlying basis. izen intends to accept upon
January 15, 2012. The Most significantly, AILA’s receiving permanent resi-
EB-3 Dates for Filing has practice pointer also states dence, while part 1.b. can in-
retrogressed to January that USCIS has indicated that stead be checked to indicate
22, 2012. filing a transfer of underlying that the noncitizen is porting
AILA’s Case As- basis request with an I-485, to a new position that they in-
sistance Committee re- Supplement J restarts the tend to accept when the I-485
cently posted a practice 180-day clock for adjustment is approved. Hence, I-485J is
pointer on February 9, applicants who wish to port required to confirm the exis-
2022, which we further to new employment. USCIS tence of the job offer that is the
analyze for the benefit of states that “for purposes of subject of the labor certifica-
our readers. See AILA portability, you would restart tion and the I-140, or, alterna-
Doc. No. 22012600. The the portability clock on the tively, it is required to request
practice pointer discuss- day we receive the transfer portability under INA § 204(j).
es USCIS’ guidance on request”. We are perplexed by If the applicant checks the first
requesting a transfer of USCIS’ response, and analyze box, confirming the validity
underlying basis, which it further herein. of the existing I-140 job offer,
requires a written request INA § 204(j) states that the 180 -day portability clock
along with an I-485 Sup- “for an individual whose ap- should not start.
plement J to the follow- plication for adjustment of Many adjustment appli-
m of ing address: status…has been filed and re- cants may find that their job
Attn: I-485 Supp J
CYRUS D. MEHTA & PARTNERS PLLC U. S. Department of Home- mained unadjudicated for 180 duties have changed slightly
days or more shall remain valid since their I-140s were filed,
land Security with respect to a new job if the such that they now involve, for
USCIS Western Forms Center individual changes jobs or em- example, the use of updated
10 Application Way ployers if the new job is in the technologies. One can take the
Montclair, CA 91763-1350 same or a similar occupation- position that the job remains
The USCIS guidance al classification as the job for the same and the applicant
further states that “if a re- which the petition was filed”. is not porting, so the 180-day
quest to transfer the un- Thus, if an applicant’s I-485 clock should not restart if Part
derlying basis has previ- has been pending for more 1.a. in the I-485J is checked.
2 6th Floor ously been submitted to a than 180 days, it makes little
USCIS office prior to the sense that the portability clock Continued at next page... >>
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