It's possible to transfer to another employment-based category for a green card

In 2022, the number of visas available for employment-based visas vary greatly depending on preference categories. There are many remaining slots for first and second employment-based visa preferences. If necessary during the permanent residency process, you may be able to switch into the first and second preference categories. 

There is an annual family-sponsored preference limit of 226,000, and 140,000 for employment-based preference immigrants. Of those 140,000, first, second and third preferences take 40,000 each, while fourth and fifth preferences get 10,000 each. 

September 30 marks the end of fiscal year 2022, which has added an additional 140,000 spots from unused family-sponsored preferences from last year.

There is also unfilled quota left over from the fifth preference category. The left over visa slots are transferred to the employment-based first preference category, but if there are still unused spots, those are given to the second preference category. This explains why there is extra space left in the first and second preference categories in comparison to previous years.

However, the visas that are not used by second preference immigrants do not transfer to the third preference category, as there are so many cases in the second preference category that request green cards. 

In order to transfer between employment-based classifications for a green card, you need to meet the following four requirements. First, you must maintain a legal status that allows you to file a I-485. Second, you must have been approved or pending for Immigration Petition for Alien Worker in the EB-2 classification (form I-140). Third, you must meet the qualifications for either the first or second preference categories when transferring.

For the first preference, that means you must either be a person of extraordinary ability (EB-1A), an outstanding professor or researcher (EB-1B) or a multinatioonal manager or executive (EB-1C). For the second preference, you must possess advanced degrees and at least five years’ experience in the profession.

Fourth to transfer between classifications, you must be able to use the available spot right away. Even if you meet all the requirements, there is no guarantee you will be guaranteed a transfer into another preference category. That decision is up to the USCIS. 

If you have already been approved for an I-140, you must file a request for the transfer with an I-485 Supplement J. But if you are pending for an I-140, you do not need to file the supplement. If an additional I-140 is submitted, you must send evidence showing you meet the requirements for the new preference category. 

This transfer is used mostly by immigrants in the third preference category. Of them, there are many who meet the requirements for the second preference category but request for the third due to salary.

They also preferred the third category to the second because there was no significant difference in processing time between the two. But because of a fast-filling quota as the fiscal year ends, the results of a green card process have gotten delayed. If you have applied for the third preference category, it may be worth considering applying for a transfer to the second category instead.

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