How Does Retrogression Impact My Pending I-485?

The October 2022 Visa Bulletin provided unwelcome news to many in the form of significant retrogression in several employment-based categories. Whenever there is retrogression – that is, a cutoff date that moves backwards in the monthly visa bulletin – it inevitably raises questions and concerns from foreign nationals with pending I-485 adjustment of status applications. This article is provided for the benefit of MurthyDotCom readers to address the most common questions we receive at the Murthy Law Firm related to retrogression.

Why are Numbers Retrogressed in October 2022?

The U.S. Department of State (DOS) visa bulletin is responsible for estimating the expected usage of immigrant visa numbers in the various family and employment-based (EB) categories. Generally, the immigrant visa numbers move forward at the start of the fiscal year (FY) unless the DOS believes that the number of pending I-485 applications and/or immigrant visa cases in a particular category exceeds the immigrant visa numbers available for the coming fiscal year. For fiscal year 2023, which begins on October 1, 2022, the DOS determined that if it did not retrogress certain categories, such as EB2 India, all of the immigrant visa numbers would be used within a few weeks at the start of the FY. This would violate the mandate of Congress regarding usage of immigrant visa numbers during the fiscal year.

Age Out Protections for Dependent Children

If a dependent child’s I-485 application is filed based on the cutoff date in the final action chart (i.e., Chart A) being current, that child is generally protected from aging out. This is true, even if the priority date later retrogresses.

No such protection is provided if the I-485 is filed based on the priority date being current in the dates for filing chart (i.e., Chart B). However, if the I-485 is filed based on Chart B, and the principal parent’s priority date later became current on Chart A before the child ages out, the child is protected, even if the dates subsequently retrogress.

That being said, the rules that govern age-out protections for dependent children are complex, and largely go beyond the scope of this article. See parts 1 and 2 of the MurthyDotCom NewsBrief, Child Status Protection Act Basics for a more comprehensive overview of the law intended to protect many children from aging out.

AC21 Portability Still Available, but No Interfiling

Under the American Competitiveness in the 21st Century Act (AC21), a foreign national may move to a position that is in the same or similar occupational classification as the one set forth in the underlying PERM labor certification or the I-140 petition (where no PERM is required) once the I-485 has been pending for at least 180 days. Eligibility to port jobs under AC21 is not impacted by retrogression. Conversely, interfiling is not permitted unless the person’s priority date is current on Chart A of the visa bulletin at the time the interfiling request is made.

No Impact on EAD or AP

If a foreign national properly files an I-485 application, that individual is generally eligible to also apply for an employment authorization document (EAD) and/or advance parole (AP). Similarly, while the I-485 remains pending, it is normally possible to renew one’s EAD and/or AP. Retrogression does not affect the validity of an existing EAD or AP, nor does it prevent a person from applying for extensions.

Conclusion

Unless Congress fixes the U.S. immigration system, retrogression will likely remain a constant threat to many foreign nationals. So, it is helpful to understand how retrogression may impact one’s stay in the United States while waiting to become a lawful permanent resident.

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