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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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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