United States: Top Three Employment-Based USCIS Adjustment Of Status FAQs At The End Of Fiscal Year 2022

There is no denying that the COVID-19 pandemic continues to impact employment-based adjustment of status (AOS) applicants for legal permanent residence. For example, consular closures and limited immigrant visa processing operations during the pandemic have contributed to almost doubling the available number of employment-based immigrant visas for allocation in FY 2022. These increased immigrant visa numbers and other challenges resulting from the COVID-19 pandemic have led to a number of uncertainties for foreign national employees seeking to adjust their status to permanent residence. To address some of these concerns, U.S. Citizenship and Immigration Services (USCIS) recently published frequently asked questions (FAQs), responding to inquiries about the increased visa numbers and other challenges facing employment-based AOS applicants as we approach the end of FY 2022 in September. This article addresses my top three FAQs of particular note.

1. Applicants who did not file a Form I-693 (Medical Exam) with their pending adjustment of status application should wait for USCIS to request it.

In general, all employment-based adjustment of status applicants are required to submit a medical examination (Form I-693) showing that they are free from health conditions that would make them inadmissible. Since they are not required to file Form I-693 concurrently with Form I-485, many AOS applicants file their medical exams after they file their adjustment of status application. The FAQs state that those applicants who choose to wait should not send an unsolicited medical exam to USCIS. Rather, the applicant should wait until USCIS issues a request for initial evidence (RFI) or request for evidence (RFE) asking for the medical exam. By sending an unsolicited medical exam, the applicant is warned that this action could further delay the adjudication of the AOS application.

2. USCIS will not presume that applicants want to transfer the underlying basis of their pending Form I-485.

Given the exceptionally high number of visas available in the first (EB-1) and second (EB-2) employment-based preference categories, USCIS earlier this year encouraged eligible applicants in the employment-based third preference category (EB-3) to transfer the underlying basis of their adjustment of status applications from EB-3 to either EB-1 or EB-2, if possible. (See here). Doing so would allow USCIS to allocate more employment-based visa numbers. However, the FAQs make it clear that USCIS will not presume that applicants want to transfer the underlying basis of their pending Form I-485 AOS applications to a petition in a category where a visa is available and the possibility for the transfer is present. Thus, if an EB-3 applicant wishes to transfer their pending Form I-485 AOS application to a petition classified under the EB-1 or EB-2 category, then they must submit a written request to USCIS.

3. Applicants who have already submitted a valid transfer of basis request should not submit a duplicate request.

Currently, USCIS does not automatically update the status of an applicant's pending Form I-485 AOS application to show that the Service has received a transfer request of an underlying I-140 immigrant visa category basis. To make matters worse, applicants who submitted a transfer request may see a message in Case Status Online stating that USCIS has temporarily paused work on their application because an immigrant visa number is no longer available to the applicant. Applicants receiving this message or whose application has not been updated online might be tempted to submit another transfer of underlying basis request. The FAQs state that all requests to transfer the underlying basis of a Form I-485 AOS application received by USCIS will be processed. The message in the Case Status Online posting does not mean that USCIS has paused work on the application. Rather, USCIS appears to be posting the message in lieu of an automatic update stating that the transfer request has been received. For these reasons, the FAQs direct applicants not to send a duplicate request to transfer the underlying basis of their petition. Doing so could further delay the adjudication of the applicant's AOS application.

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