Retrogression Update  
Posted Feb 18, 2005
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As MurthyDotCom and MurthyBulletin readers were advised in our February 11, 2005 NewsFlash, EB3 Numbers Move Forward; "Other Workers" Retrogress, the March 2005 Visa Bulletin reflects a bit of good news for EB3 skilled / professional workers. It reflects bad news for EB3 Other Workers, with a substantial retrogression, or backward movement, of the priority dates for that category.
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The priority dates for EB3 skilled / professional workers from India, the Philippines, and mainland China have moved forward by two months. As of March 2005, the priority date that is current for persons from the affected countries is March 1, 2002. Conversely, the priority dates for all EB3 "other worker" cases will retrogress in March 2005. The other workers retrogress to July 1, 2001 from March 1, 2005 until the U.S. Department of State (DOS) Visa Office issues another advisory on the movement of the priority dates.
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What it Means for EB3 Skilled / Professional Workers
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MurthyDotCom carries a number of articles on the subject of retrogression and its impact on immigration cases. Those unfamiliar with this topic, or struggling to understand this rather complex issue, should review our article entitled,  Priority Dates May Retrogress (Sep 24, 2004).
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We at The Law Office of Sheela Murthy take this opportunity to address various situations and what an individual or sponsor needs to do, if anything, in light of the movement, both forward and backward, in priority dates for EB3 skilled / professional worker cases. While much of this also applies to EB3 "other worker" cases, many of those individuals are either out of status or outside the U.S. Those considerations therefore may be different and are not covered in this article.
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EB3 Skilled / Professional Workers : If No Labor Certification Filed Yet
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If no labor certification has been filed at this time, retrogression is an issue in deciding whether to file immediately or wait until PERM goes into effect. As we have explained in previous articles, PERM speeds the labor certification process. With retrogression, however, the case may be unable to move forward to the I-485 stage. Thus, the faster labor certification does not ultimately accelerate the case. This matter was covered in our January 21, 2005 MurthyBulletin article, PERM and EB3 - File Regular LC Now!, available on MurthyDotCom.
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EB3 Skilled / Professional Workers : If Labor Certification Pending
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The processing of a labor certification by the U.S. Department of Labor (DOL) is not affected by retrogression. Retrogression affects the ability to file the I-485 once the labor certification is approved. Thus, those with pending labor certifications may not really have to do anything in response to retrogression. If they are considering converting their cases to PERM, they should be mindful of the importance of the priority date and maintaining that date. If the priority date is not current, they should also consider whether they will gain anything even if they do successfully "convert" the case to PERM and maintain the earlier priority date. If the case cannot move forward to the I-485 stage for many years anyway, there may be less to be gained in spending the additional money to obtain a faster PERM approval.
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There are some people who have labor certifications filed under EB3, but who could now qualify as EB2. Since EB2 priority dates are current as of this writing, these people may want to discuss this possibility of filling a new labor certification case under EB2 with a qualified immigration attorney. It is important to keep at least two caveats in mind: (1) It is the employer's requirements for the job that govern whether a case is EB2 or EB3; (2) There is no guarantee that the EB2 numbers will not retrogress before the I-485 is filed or adjudicated.
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EB3 Skilled / Professional Workers : Labor Certification Approved
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Cases with the labor certifications approved will be able to move forward to the I-140 stage. If the priority date is current and available (meaning before the date listed in the Visa Bulletin), then the case can also move forward to the I-485 stage in a concurrent filing. If the priority date is not current, the case can move forward to the I-140 stage, but not the final I-485 stage. We explained the impact of retrogression on concurrent filing in our December 24, 2004 MurthyBulletin article, Retrogression Clarification: Concurrent Filing Possible for Some, available on MurthyDotCom.
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People in this position, with current priority dates (or priority dates that will become current in next month) should take all possible steps to prepare the I-140/I-485 for filing. That is, if a person has an approved labor certification filed before March 1, 2002, and s/he has not yet filed the I-485, the I-485 should be prepared for filing (along with the I-140 if that has not been filed). The key is to file I-485 cases as soon as the priority dates become current, since they could retrogress once again.
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EB3 Skilled / Professional Workers : I-140 Pending / Approved
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The option listed above for a person with an approved labor certification also applies to one with a pending I-140 or approved I-140, but no I-485 filed yet. Such a person, unless there is a plan to consular process, should prepare the I-485 for filing if the priority date becomes current on March 1, 2005. Since the Visa Bulletins are issued about 15 days in advance (e.g. the March bulletin was issued in mid-February), there is advance notice of eligibility to file. With retrogression, one needs to take advantage of the fact that the priority date will become current and file the case at the earliest opportunity before the situation changes yet again.
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A person without current priority dates could work on obtaining the necessary documents from abroad while waiting. This includes birth and marriage certificates for the primary applicant and any dependents and/or alternative proof, as needed. They could also collect the data that is needed, such as addresses for the past five years, employer names and addresses for the past five years, and documentation of immigration history / lawful status.
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EB3 Skilled / Professional Workers : I-485s Pending
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If the I-485 is pending, the priority date must be current in order for it to be approved. Thus, it is best to comply with fingerprinting notices as soon as possible and respond to Requests for Evidence (RFEs) in a prompt manner so that, when the priority date becomes current, the case will be ready for a decision. If the I-140 is approved and the I-485 has been pending at least 180 days, it is also best to file AC21 notification if changing jobs under the AC21 provisions to reduce the chance of receiving an RFE or Notice of Intent to Deny, which will slow the case down and make it ineligible for approval even if the priority date becomes current.
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Other Considerations : Family Members / Status
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The eligible spouse and children of the primary green card beneficiary can file I-485 Applications for Adjustment of Status. However, they can only do so if the priority dates are current in the category. This holds true even if the primary beneficiary filed his/her I-485 previously. Therefore, this should be taken into consideration and the entire family should generally file together, if at all possible. Otherwise, the ability of the family members to file the I-485 could be delayed.
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Unless the I-485 can be filed, if an individual is in the U.S., s/he must maintain a lawful nonimmigrant status. Therefore, where the dependent family member cannot file the I-485, s/he must maintain a lawful status in some other manner. If the basis for being lawfully present in the U.S. stems from the primary applicant's status, such as the reliance of one's H-4 status on the primary applicant's H1B status, then the primary applicant must maintain the nonimmigrant status so that the derivative spouse has a way to stay in the United States lawfully.
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Conclusion
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Retrogression impacts many considerations and aspects of a green card case. Since it appears to be a fact of immigration life for the time being, and it is expected to expand to EB2 cases, any strategy should take retrogression into consideration. We at The Law Office of Sheela Murthy will stay abreast of this issue and continue to update MurthyDotCom and MurthyBulletin readers on retrogression and its effects on the immigration process.