Retrogression and Spouses
Posted Oct 14, 2005
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Retrogression is, as of October 1, 2005, fully upon us for nationals of countries with heavy visa usage. The impact is now being felt in the EB3 category for all foreign nationals. While the EB1 and EB2 categories are still available for those persons not charged to India and China, this may not remain the case for very long. Many MurthyDotCom and MurthyBulletin readers are affected by this problem.
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Visa number unavailability has many repercussions in immigration case processing and immigration strategy. We at The Law Office of Sheela Murthy have touched upon these issues over the past months and will continue to assist our readers through this time.
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Each of the scenarios presented in this article presumes a spouse is in a derivative / dependent classification and that both spouses will be "charged" to the same country, for purposes of visa availability. It is possible for each partner in a marriage to have his/her own, independent immigration status. This provides more options.
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Unmarried (Single) : Adjustment of Status Pending
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There is good and bad news for unmarried people with I-485 applications pending. The good news is that, if one plans to marry someone from her/his home country, with retrogression, there is more time to finalize plans. As many MurthyDotCom and MurthyBulletin readers know, in order to have a spouse eligible as a derivative beneficiary in an employment-based case, it is necessary to marry before the primary applicant's case is approved. Many people refer to this as "adding" the spouse to the existing I-485 case, though the spouse will need to file a separate I-485 application that indicates s/he is a dependent of the primary, or principal, applicant. The derivative spouse is eligible for the same employment-based category and priority date as the primary spouse.
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Since it is necessary to have a visa number available in order to approve the primary applicant's case, retrogression potentially buys more time to find that special someone. There is also time to take care of all the marriage, wedding, and travel arrangements.
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The bad news is that, if the primary applicant has not maintained his or her nonimmigrant status, the spouse may have to wait abroad for a long time. The new derivative spouse would have to wait for the primary to obtain approval of his/her green card. After the approval, the dependent spouse would be eligible to proceed with a following-to-join green card case. With retrogression, this could take years.
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The ideal way to coordinate these matters is for the primary spouse to maintain his/her dual intent nonimmigrant status (H1B or L-1) while the green card is case pending. Then, once married, s/he can bring the spouse to the U.S. in a dependent (H-4 or L-2) status. Once s/he is in the U.S., the new spouse can file the I-485 (Application for Adjustment of Status) when the visa number becomes available. It is necessary to maintain the nonimmigrant status until the I-485 can be filed.
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If the primary spouse has not maintained her/his nonimmigrant (H1B or L-1) status, the situation should be reviewed to determine whether there is any way to regain such a status. This should be discussed with an experienced immigration attorney. It generally would require a new petition through an employer and may require travel outside the United States in order to resume a nonimmigrant status. It is also likely that a new visa will be needed. Time limitations for the nonimmigrant status will be important in this process. Therefore, if marriage is contemplated, it is particularly important to maintain the nonimmigrant status.
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Unmarried (Single) : No Adjustment of Status Pending
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If one does not have an adjustment of status pending, s/he will need to maintain the nonimmigrant status. If one marries during this time, the spouse, if in the U.S., will be eligible to file the adjustment of status with the primary spouse. As discussed above, if the prospective spouse is abroad, the normal procedure would be to bring him/her to the U.S. in the appropriate dependent category. Once the green card case progresses and the visa numbers are available for the particular priority date, both people can file to adjust status.
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Married : No Adjustment of Status Pending for Either
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If a couple is married and neither spouse has a green card case that has reached the I-485 stage, they will both need to maintain their nonimmigrant status/es. They normally then would file their I-485s at the same time, once they are eligible to do so.
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Married : Adjustment of Status Pending for Both
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If both spouses have the adjustment of status pending, they will need to wait until the priority dates become available. Until then, the I-485 applications will remain pending, unless a Request for Evidence (RFE) is issued or some other type of problem arises. They can obtain Employment Authorization Documents (EADs) and Advance Parole (AP) each year. They need to be sure to extend these documents in a timely fashion if they are relying on them for work and travel permission. If they are maintaining nonimmigrant status/es, which is often recommended, they need to extend this/these as required.
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Married : Adjustment of Status Pending for Primary
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This is not an uncommon situation and it raises important questions. This happens when the couple marries after the primary has filed the I-485, but, due to retrogression, the visa numbers are not available following the marriage. Thus, the dependent spouse cannot file his/her I-485. In such a case, the dependent spouse can come to the United States in the nonimmigrant dependent category (usually H-4 or L-2) if the principal spouse has maintained nonimmigrant status.
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Thus, each spouse in the marriage would have to have maintained his/her nonimmigrant status until the dependent spouse is able to file an I-485 adjustment application. This raises the question, "What happens if the primary's I-485 is approved before the dependent can file?"
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Many people have asked this, and it is a matter of planning and coordination. Since both spouses in the marriage have the same priority date and category, it should be possible to coordinate this and safeguard the dependent spouse. The primary's case cannot be approved unless the priority date becomes available. The dependent's case can be filed immediately as the priority date becomes available. The U.S. Department of State Visa Bulletin is posted about 15 days in advance of the month during which it is effective. This advance notice that the visa numbers will be available is the best way to coordinate the dependent's case and have it ready to file at the beginning of the month when the visa numbers become available. This will greatly reduce the chances of the primary's case being approved before the dependent can file.
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The dependent spouse is considered out of status if s/he holds nonimmigrant status that is based on that of the primary, and the primary's case is approved before the derivative spouse can file his/her own I-485 application. There is a bit of a safety net, however, under Section 245(k) of the Immigration and Nationality Act. This applies in employment-based cases and allows the filing of I-485s even if the applicant has been out of status for up to 180 days. Thus, if there is a short gap between the approval of the primary's I-485 and the filing of the dependent's I-485, the dependent's case should still be accepted and approved.
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Obviously, it is best to try to avoid this gap when the dependent is not in status. The dependent needs to have the case filed as soon as possible, once the Visa Bulletin indicates the numbers are available and before there is potential for retrogression to an earlier date or unavailability, once again. Section 245(k) can help permit the I-485 filing, if there is a short gap due to mailing delays or other logistical matters. It does not provide any status or legal permission to remain in the United States, however.
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For this reason many people are taking steps to ensure, at least, that they have the right documents for the I-485 in advance. Others will be preparing their I-485s ahead, as they see the visa dates moving forward. This should allow their cases to be filed immediately upon the availability of the visa number.
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Conclusion
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Retrogression creates many complex and varied issues. We at The Law Office of Sheela Murthy suggest consulting with a qualified and experienced U.S. immigration attorney to help with planning and strategy. Those contemplating marriage, or who are recently married, may wish to understand and discuss these matters to avoid problems later.