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USCIS is encouraging applicants with pending EB-3 to consider requesting that the underlying basis of their application be transferred to the EB-1 or EB-2 category because there is an "exceptionally high number of employment based visas available in these categories during this fiscal year (Oct. 2021-Sept. 2022)." The annual limit for fiscal year '22 for employment visas is about twice as high because there is a large amount of unused family sponsored visas from last fiscal year.

Under the statute, any visas not used in the EB-5 category are given to the EB-1 category. Then, if there are unused visas in the EB-1 category, they are transferred to EB-2. They cannot go straight to the EB-3 category because there is a significant number of non-citizens waiting for visas in the EB-2 category.

To be able to transfer your applicant, you must meet the following criteria:

1. A visa is unavailable to you in the EB-3 category
2. You have a pending I-140
3. A visa is available in the EB-1 or EB-2 category
4. You have continuously maintained eligibility for adjustment of status.

This can be a rewarding process since you might not have to wait until next fiscal year to obtain a visa, but it can be confusing. Asonye & Associates is here to help you navigate this process. Please call our office to schedule a consultation.

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