Employment-Based Adjustment of Status

The underlying employment-based immigrant classification

The first issue is whether the principal applicant has a valid immigrant classification capable of supporting adjustment.

Many employment cases use Form I-140. EB-5 applicants use the petition applicable to their investor classification, and specialized employment or special immigrant categories may use other forms.

USCIS may therefore approve an immigrant petition yet deny Form I-485 if the applicant cannot establish adjustment eligibility, admissibility, visa availability, continuing eligibility, or favorable discretion.

Visa availability and priority dates

Employment-based immigrant visas are numerically limited. An applicant must therefore determine whether a visa is available in the correct category and country of chargeability.

The analysis may involve:

• The employment preference category;
• The priority date;
• Country of chargeability;
• Cross-chargeability;
• The Department of State Visa Bulletin;
• Final Action Dates;
• Dates for Filing;
• USCIS's monthly designation of the chart available for adjustment filing; and
• Visa retrogression after Form I-485 is filed.

See Visa Availability for Adjustment of Status.

Concurrent filing of the immigrant petition and Form I-485

Certain employment-based applicants may file the immigrant petition and Form I-485 concurrently when the governing category permits concurrent filing and the applicant is eligible to file adjustment under the applicable visa-availability rules.

Concurrent filing is commonly relevant to:

• EB-1 cases;
• EB-2 cases, including qualifying NIW cases;
• EB-3 cases; and
• EB-5 cases where the statutory concurrent-filing requirements of INA §245(n) are satisfied.

Employment-based adjustment bars

Employment applicants often face adjustment issues that do not arise in the same manner for immediate relatives of U.S. citizens.

Three provisions are especially important:

The precise statutory language, exemptions, and factual period involved must be identified before concluding that adjustment is barred.

See INA §245(c) Adjustment Bars.

INA §245(k): the employment-based 180-day exception

INA §245(k) can overcome specified adjustment bars for qualifying employment-based applicants who meet its statutory requirements.

The provision examines the applicant's conduct after the relevant most recent lawful admission and permits specified violations only where they do not exceed an aggregate period of 180 days.

Relevant conduct includes:

• Failure to maintain continuously a lawful status;
• Unauthorized employment; and
• Other violations of the terms and conditions of admission.

The current statute includes qualifying EB-1, EB-2, EB-3 and EB-5 applicants and specified religious workers, together with qualifying derivatives who independently satisfy the requirements.

See the complete INA §245(k) Guide.

Continuing permanent job-offer requirement

Many employment-based immigrant classifications depend on a permanent job offer. Where the immigrant classification requires such an offer, it generally must continue to support adjustment unless a statutory portability rule or another legally sufficient basis applies.

USCIS can therefore examine:

• Whether the petitioning employer continues to exist;
• Whether the qualifying job offer remains available;
• Whether the applicant intends to accept the offered permanent employment;
• Whether the employer intends to employ the applicant;
• Whether INA §204(j) portability applies; and
• Whether the underlying petition remains valid for adjustment purposes.

Form I-485 Supplement J

Form I-485 Supplement J is used in qualifying employment-based cases to confirm that a bona fide permanent job offer described in an approved or pending Form I-140 remains available or to request portability under INA §204(j).

Supplement J is generally relevant where the employment-based immigrant classification depends on a specific permanent job offer.

It is not ordinarily the mechanism used to establish employment eligibility for self-petitioned classifications that do not depend on a specific employer job offer, such as EB-1 extraordinary ability or an ordinary national interest waiver.

AC21 job portability under INA §204(j)

INA §204(j) can preserve a qualifying employment-based immigrant petition when the beneficiary changes jobs or employers after Form I-485 has remained pending for 180 days or more.

The portability analysis generally requires:

• A qualifying employment-based immigrant petition;
• A Form I-485 that has remained pending for at least 180 days;
• A new permanent job offer; and
• A new job in the same or a similar occupational classification as the position described in the immigrant petition.

Same or similar occupational classification

USCIS can consider the totality of the circumstances surrounding the original and new jobs, including occupational classification codes, duties, skills, experience, education, wages, career progression, and other relevant evidence.

USCIS policy also provides that an employment applicant who transfers Form I-485 to a different employment-based petition may have to satisfy a new 180-day period before using portability based on the replacement petition.

EB-1A and national interest waiver adjustment cases

EB-1 extraordinary-ability applicants and EB-2 applicants granted national interest waivers differ from ordinary employer-sponsored applicants because the governing immigrant classifications do not require the conventional employer-specific permanent job offer.

EB-1A extraordinary ability

An EB-1A applicant does not require an employer petitioner or permanent job offer. The applicant must nevertheless continue to satisfy the immigrant classification, including the requirement to continue work in the area of extraordinary ability.

National interest waiver

An ordinary NIW waives the job-offer and labor-certification requirements. The adjustment applicant must nevertheless continue to have a legally sufficient NIW basis and remain eligible for the immigrant classification supporting Form I-485.

A change in employer, self-employment, or change in the applicant's proposed work should therefore be analyzed under the requirements of the underlying EB-1A or NIW classification rather than assumed to qualify as AC21 portability.

Employment-based adjustment and USCIS discretion in 2026

Approval of an employment-based immigrant petition does not eliminate the separate discretionary component of an ordinary Form I-485 adjudication.

Under USCIS Policy Memorandum PM-602-0199, adjudicators considering a discretionary adjustment application may examine the applicant's complete circumstances, including immigration history and conduct.

Relevant considerations may include:

• Compliance with current and prior immigration status;
• Unauthorized employment;
• Other status violations;
• Statements made in connection with visa applications, admission, or parole;
• The applicant's conduct following admission or parole;
• Whether conduct appears inconsistent with representations made to immigration authorities;
• Employment history;
• Family ties and humanitarian equities;
• Moral character;
• Criminal or other adverse conduct; and
• Other favorable or unfavorable circumstances.

Accordingly, an H-1B or L-1 applicant does not create a discretionary problem merely by lawfully pursuing permanent residence while maintaining that classification.

Immigrant petition discretion is a different issue

The discretionary analysis associated with Form I-485 should also be distinguished from any discretion inherent in the underlying immigrant petition itself. USCIS policy separately identifies discretionary components in particular immigrant classifications, including national interest waivers and certain EB-5 determinations.

An applicant should therefore ask two different questions where relevant: whether the immigrant classification was properly established, and whether the applicant warrants adjustment of status.

Transfer of underlying basis

An applicant with a pending Form I-485 may sometimes request that USCIS transfer the application from one immigrant basis to another.

USCIS generally requires:

• The adjustment application to remain pending;
• Continuity of underlying adjustment eligibility;
• Eligibility for the replacement immigrant category;
• Visa availability under the replacement basis where required; and
• A written request identifying the new basis.

Examples can include:

• EB-3 to EB-2;
• EB-2 to EB-1;
• One employer's Form I-140 to another employer's Form I-140;
• Employment-based adjustment to an immediate-relative family basis; or
• Another replacement category that independently permits adjustment.

USCIS treats transfer of underlying basis as discretionary. Except for certain straightforward transfers among the first three employment preference categories, an applicant should not assume a transfer request will automatically be granted.

Derivative spouses and children

A qualifying spouse or child may generally seek derivative permanent residence based on the principal employment immigrant's classification where the category permits derivatives.

A derivative applicant must separately establish:

• A qualifying relationship to the principal;
• Adjustment eligibility;
• Admissibility;
• Visa availability where required; and
• Continuing derivative eligibility through the relevant adjudication point.

Child Status Protection Act issues may be especially important where employment preference backlogs create lengthy waits.

Employment-based Form I-485 process

See the Form I-485 Process Guide.

Common employment-based adjustment problems

• The applicant has a period of unauthorized employment.
• The applicant fell out of nonimmigrant status before filing.
• The applicant may need INA §245(k).
• The priority date retrogressed after Form I-485 was filed.
• The employer withdrew Form I-140.
• The employer terminated the applicant.
• The applicant wants to change jobs.
• The applicant wants to use INA §204(j) portability.
• The new job may not be in the same or a similar occupational classification.
• The applicant has an EB-1A or NIW case and changes the nature of the intended work.
• The applicant wants to transfer Form I-485 to another approved or pending immigrant petition.
• USCIS questions whether a bona fide permanent job offer remains available.
• The derivative child's CSPA eligibility is uncertain.
• USCIS identifies inadmissibility.
• USCIS raises an adverse discretionary issue based on immigration history or prior representations.

See Adjustment Problems & Denials.