The October 2022 Visa Bulletin gave unwanted news to numerous in the form of significant retrogression in serval employment-based categories. Whenever there is retrogression – that is, a cutoff date that moves backward in the monthly visa bulletin – it inevitably raises questions and concerns from foreign nationals with pending I-485 adjustment of status applications.
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 push ahead toward the start of the fiscal year (FY) except if the DOS trusts that the number of pending I-485 applications and/or immigrant visa cases in a specific category exceeds the immigrant visa numbers available for the coming fiscal year. For the fiscal year 2023, which starts on 1st October 2022, the DOS determined that if it didn’t retrogress specific categories, for example, EB2 India, the immigrant visa numbers would be all used within a few weeks at the start of FY. This would violate the mandate of Congress regarding the 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 valid, even if the priority date later retrogresses.
No such protection is given if the I-485 is filed based on the need date being current in the dates for the filing chart (i.e., Chart B). However, if the I-485 is filed based on Chart B, and the principal parent’s need 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 exhaustive 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 might move to a place. That is in the same or similar occupational classification. As the one outlined in the underlying PERM labor certificate or the I-140 petition (where no PERM is required). When the I-485 has been pending for no less than 180 days. Eligibility to port jobs under AC21 isn’t affected by retrogression. Conversely, interfiling is not permitted unless the person’s priority date is current. On the Chart A of the visa bulletin at the time the interfiling request is made.
No Impact on EAD or AP
If a foreign national appropriately 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 reestablish one’s EAD as well as AP. Retrogression doesn’t affect the validity of a current EAD or AP, nor does it keep an individual from applying for extensions.
Except if Congress fixes the U.S. immigration system, the retrogression will probably stay a constant danger to numerous foreign nationals. So, it is useful to understand what retrogression might mean for one’s visit. To the United States while waiting to become a lawful permanent resident.