Retrogression FAQs

1. If I have obtained citizenship in a country that is not where I was born, will this help me?
2. If my spouse has a different country of birth, can this help me?
3. I have an approved I-140 petition with a prior employer and my current employer is sponsoring me for permanent residence. Can I keep the earlier priority date?
4. Which immigration applications require a current priority date to file?
5. Can I file an I-485 adjustment of status application before my priority date is current? ^{Sep 9 2015}
6. What happens if I filed my I-485 application previously but my priority date has retrogressed and is no longer current?
7. My I-485 adjustment of status application is pending and I recently married. Can my spouse file an I-485 even if my priority date is not current?
8. What happens if my I-485 adjustment application has been approved, but my dependent’s application is still pending and the priority date is no longer current?
9. If my I-485 application has been pending because of retrogression or quota backlogs, will USCIS request any updated information or documents?

If I have obtained citizenship in a country that is not where I was born, will this help me?

Unfortunately, it will not help you. Visa availability or visa “chargeability” per country is based on the individual’s country of birth and not country of citizenship. So, if you were born in China but have Canadian citizenship, you will still be considered “Chinese” for visa chargeability purposes.

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If my spouse has a different country of birth, can this help me?

If you are married, your spouse’s country of birth may also be used to determine visa chargeability. For example, if you were born in China, but your spouse was born in Australia and there is a quota backlog for China but no quota backlog for Australia in your preference category, you and your spouse may move forward with your I-485 application or immigrant visa application based on your spouse’s country of birth.

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I have an approved I-140 petition with a prior employer and my current employer is sponsoring me for permanent residence. Can I keep the earlier priority date?

If you have an approved I-140 immigrant visa petition with a prior employer, you may retain the priority date from that petition and use it for your current or future application for permanent resident status.

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Which immigration applications require a current priority date to file?

An applicant must have a current priority date to file an I-485 adjustment of status application or complete immigrant visa processing at a U.S. consular post abroad. An I-140 immigrant visa petition (based on an approved PERM Labor Certification) can still be filed and adjudicated if the priority date is not current, as the I-140 is not impacted by quota backlogs.

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Can I file an I-485 adjustment of status application before my priority date is current?

It depends. As of October 2015, the Visa Bulletin will include two separate charts in both the family and employment based categories. The first chart, the “Application Final Action Dates” chart will list the priority dates that are current. The second, new chart is the “Dates for Filing Application” chart, which indicates the date when a green card applicant can submit an I-485 adjustment of status application. If the date on the chart is current (“C”) or your priority date is earlier than the date on this chart, you may file your I-485 adjustment of status application with USCIS.

If it all sounds like mumbo jumbo and you are more of a visual person, here’s an example of how to read the charts. Let’s use the following hypothetical. Pretend that Donald is an Indian national, married to the lovely Hillary. Donald filed under the EB-2 category and has a priority date of June 14, 2011. The October 2015 Visa Bulletin’s “Application Final Action Dates” chart (Chart 1) shown below, lists EB-2 India as May 1, 2005. This means that an immigrant visa (i.e. green card) can only be issued (i.e. I-485 adjustment of status application approved) to an Indian national with a priority date on or before May 1, 2005. Donald’s priority date is not yet current. Is Donald out of luck?
 

Application Final Action Dates for Employment-Based Preference Cases (CHART 1)

Maybe not! Donald and the lovely Hillary may qualify under this new provision and be able to submit their I-485 adjustment of status applications now. This is where the “Dates for Filing Employment-Based Visa Applications” chart (Chart 2) below, must be consulted. To find out if Donald qualifies now, he has to find his visa type in the first column (EB-2 or 2nd) of the Chart 2. He has to stay in the row and move directly to the right to find the corresponding date for India. Chart 2 lists July 1, 2011 for EB-2 India. In order for Donald and Hillary to file their I-485 applications, their priority date must be earlier than July 1, 2011. Since Donald’s priority date is June 14, 2011, he and Hillary, along with any non-U.S. citizen children, may apply for their I-485 adjustment of status applications.
 

Dates for Filing of Employment-Based Visa Applications (CHART 2)

But, imagine – what if Donald filed an EB-3 case instead of an EB-2? He and the lovely Hillary, would be out of luck. Chart 2 lists July 1, 2005 for EB-2 India. In this second hypothetical, Donald and Hillary would not be able to file their I-485 adjustment applications just yet.

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What happens if I filed my I-485 application previously but my priority date has retrogressed and is no longer current?

Unfortunately, if you previously filed your I-485 adjustment of status application but your priority date has retrogressed and is no longer current, the U.S. Citizenship and Immigration Services (USCIS) will not adjudicate your case until your priority date becomes current again. In the meantime, you may continue to renew your “combo” card for continued employment and travel authorization.

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My I-485 adjustment of status application is pending and I recently married. Can my spouse file an I-485 even if my priority date is not current?

It depends. New changes implemented in October 2015 allow certain applicants to file an I-485 adjustment of status application even if the principal applicant’s priority date is not current. In order to be eligible, the principal applicant’s priority date must be current or earlier than the date listed on the “Dates for Filing Employment-Based Visa Applications” chart in the current Visa Bulletin. If the principal applicant’s priority is later than the date listed in the Visa Bulletin, the spouse must wait for the appropriate date before filing an I-485 adjustment of status application.

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What happens if my I-485 adjustment application has been approved, but my dependent’s application is still pending and the priority date is no longer current?

Unfortunately, even if the principal’s I-485 adjustment of status application has been approved, the U.S. Citizenship and Immigration Services (USCIS) cannot approve the derivative applicant’s (e.g. spouse and /or child) I-485 adjustment of status application if the priority date is no longer current. The derivative application will be put on hold, and USCIS will not resume processing until the priority date becomes current.

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If my I-485 application has been pending because of retrogression or quota backlogs, will USCIS request any updated information or documents?

If you are the principal applicant and your employment-based I-485 application has been pending because of retrogression or quota backlogs, the U.S. Citizenship and Immigration Services (USCIS) may request for your updated verification of employment at the time the I-485 application is adjudicated, when your priority date becomes current.

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