Retrogression for I-485 Applicants : Aspects Not Commonly Visible
Posted Oct 07, 2005; updated Oct 10, 2005

We wish to stress to all of our readers that we absolutely sympathize with them, as they suffer during this difficult time. Retrogression and unavailability of visa numbers creates a variety of life-altering problems and obstacles for the immigrant. We do not view the unavailability of visa numbers as a positive situation; to the contrary, legislative change is needed to address this. Our article is intended simply to try to show some aspects of retrogression that may not be commonly visible.

We are not just accepting the situation and do not expect our readers or clients to do so either. The laws need to be changed in order to fix this situation, and we urge our readers to make their voices heard and to urge their employers to do the same.
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Many people are feeling shocked and horrified over the delays in the I-485 processing due to retrogression for most employment-based categories. This is particularly so for nationals of India and mainland China since the employment-based third preference (EB3), the employment-based second preference (EB2), and the employment-based first preference (EB1) categories are suffering extreme visa backlogs effective as of October 1, 2005. Their frustration is certainly understandable. At The Law Office of Sheela Murthy, we even have heard of people considering the Canadian, Australian, or European migration options rather than waiting for several years to obtain the U.S. green card.
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For the benefit of MurthyDotCom and MurthyBulletin readers we have decided to analyze another side of retrogression in the case of individuals for whom the I-485 (Application to Adjust Status) has already been filed for the principal and the visa numbers have subsequently retrogressed.
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"What?" you ask. "Is there any side other than doom and gloom to retrogression? That just seems impossible, if not ludicrous!" Let us at The Law Office of Sheela Murthy help you look at retrogression for some things it actually may allow.
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Specific Benefits for the I-485 Applicant
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First, a person who was able to file the I-485 before September 30, 2005 is very lucky since s/he has enjoyed the luxury of filing the I-485 before the dates retrogressed. Thousands of others are far less fortunate and will not even be able to file the I-485, potentially for many years.
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The Law Office of Sheela Murthy proudly filed several hundred cases, including I-140s and I-485s for primary beneficiaries and their families. All of this was accomplished within a two-week period and we received a lot of appreciation from many of our clients for such expeditious filings in the short timeframe. Included in these cases were complex and difficult extraordinary ability EB1 petitions and EB2 national interest waiver (NIW) petitions, filed concurrently with the I-485s, for dozens of our researcher and post doctoral clients. This effort was almost unbelievable, even to us!
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EAD and AP Extensions Available Each Year
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Second, one who has filed the I-485 has the great advantage of being able to obtain the employment authorization documents (EAD) for him/herself and EADs for all dependants with I-485s pending, to allow the dependants to be able to work at any other job/s. The principal applicant, of course, must continue to work for, or show proof of the intention to work for the green card-sponsoring employer. Retrogression does not change eligibility for the benefit of an EAD, available to I-485 applicants. In addition, the individual does not have to wait several months for a consular visa appointment to apply for the H1B or L-1 visa stamp or a dependent visa stamp. S/He may use the Advance Parole to travel abroad and reenter the United States.
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Luxury of Additional Time to Find a Spouse
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Third, if one is unmarried, the I-485 applicant is given the luxury of more time to choose a spouse. That spouse can enjoy dependent benefits and obtain permanent resident status based on being married prior to approval of the I-485. This is a huge benefit to those who were intending marriage, but need more time for one reason or another. There is an enormous benefit to marrying prior to the approval of the I-485, rather than after. If the marriage takes place after the I-485 is approved, the case becomes a family case and the spouse can be stuck abroad waiting for several years.

Note: A spouse is not entitled to obtain the "green card" automatically simply by getting married before the I-485 is approved. A spouse who gets married before the I-485 is approved is allowed to file and obtain the H4 visa from abroad and enter the U.S. on an H4 status as long as the principal maintains H1B status.
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AC21 Portability Allowing Change of Employers
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Fourth, under the American Competitiveness in the Twenty-First Century Act (AC21) such an I-485 adjustment applicant is legally allowed to change employers after the I-140 petition has been approved and after the I-485 has been pending for at least 180 days. The new employment must be considered as being within the same or similar category to that mentioned on the LC/I-140 petition. If the USCIS had approved the I-485 within fewer than 180 days, such an adjustment applicant would legally not be able to take advantage of portability to change employers! We expect that many people will be exploring this option to pursue better career opportunities.
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H1B Three-Year Extensions Permissible
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Fifth, a person with the Labor Certification and the I-140 petition approval enjoys the added benefit of the ability to obtain three-year H1B extensions only as long as there is retrogression. This represents a huge savings each year for the employer and employee. Instead of having to spend thousands of dollars each year on H1B extensions for the principal and H-4s for all dependents, the entire family is allowed to file and obtain three-year H1B and H-4 extensions.
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Immigration Laws Change
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Sixth, and finally, immigration laws are always subject to change. These laws, and the regulations interpreting and implementing them change regularly. While this is often frustrating, as it makes planning difficult, it can be a good thing when change is needed. Anyone who has worked with or been subject to immigration laws for any length of time knows that there is constant flux. With this, there is always hope for improvement. Retrogression is not an incurable disease. The many possible cures and treatments are within the control of the U.S. Congress. Those who are interested need to make their voices heard and urge their employers and colleagues to do the same.
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Conclusion
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So, although retrogression may not appear to be perfect for most people on all levels due to expected delays in finally obtaining the approval of the "green card" or permanent status, it is important to consider what one can do in light of retrogression.