Visa Retrogression While I-485 Is Pending
A preference-category applicant can properly file Form I-485 when USCIS permits filing under the applicable Visa Bulletin chart and later experience visa retrogression. Retrogression does not ordinarily cancel a properly filed adjustment application. Instead, Form I-485 generally remains pending until an immigrant visa number again becomes available for final action. USCIS cannot approve a preference-based adjustment application unless a visa is immediately available when the agency takes final action.
What happens if my priority date retrogresses after I file Form I-485?
The applicant does not ordinarily need to file a new Form I-485 merely because the Visa Bulletin moved backward after USCIS accepted the original filing.
What is visa retrogression?
Visa retrogression occurs when the Department of State moves a preference-category cutoff date backward because demand exceeds the immigrant visa numbers available under the statutory numerical limits.
Retrogression can affect:
- Family-preference applicants;
- Employment-based applicants;
- Special immigrants subject to numerical limits;
- Principal beneficiaries;
- Derivative spouses; and
- Derivative children.
Immediate relatives of U.S. citizens are not subject to the ordinary preference-category numerical cutoff system.
Filing eligibility and final approval are different
The monthly Visa Bulletin contains separate concepts that can determine:
- When USCIS permits Form I-485 filing; and
- When USCIS may finally approve the application.
An applicant can be eligible to submit Form I-485 under the chart USCIS designates for filing but later be unable to receive final approval because the category retrogresses.
See Final Action Dates vs. Dates for Filing and Which Visa Bulletin Chart Does USCIS Use?.
USCIS cannot approve without an available visa number
INA §245(a) requires an immigrant visa to be immediately available at the time of adjustment.
8 C.F.R. §245.2 also prevents final approval of a preference case until the required immigrant visa number has been allocated.
USCIS may complete major adjudicative steps and still be legally unable to grant permanent residence until the priority date again permits visa allocation.
The Form I-485 generally remains pending
When retrogression occurs after a proper filing, USCIS generally holds the case rather than denying it solely because the visa number became unavailable.
The case can remain pending while USCIS waits for:
- Final Action Date to advance;
- Visa-number allocation;
- Completion of other adjudicative steps; or
- Another basis for adjustment if the applicant properly requests transfer.
USCIS excludes visa-regressed I-485 cases from ordinary processing-time calculations because the agency cannot complete them until a visa becomes available.
Do not refile Form I-485 solely because of retrogression
A second adjustment filing is generally unnecessary merely because the Visa Bulletin moved backward.
Refiling can create:
- Duplicate applications;
- Duplicate fees;
- Case-matching problems;
- Confusion over underlying basis;
- Unnecessary medical filings; and
- Potential complications with derivative cases.
Unless another legal reason requires a new filing, retrogression itself generally calls for waiting rather than refiling.
C09 employment authorization can continue
Because Form I-485 remains pending during visa retrogression, the applicant generally remains eligible to seek employment authorization under category C09.
This includes:
- Initial Form I-765 where eligible;
- Renewal Form I-765;
- Qualifying automatic EAD extension; and
- Continued employment during valid authorization.
See Employment Authorization While I-485 Is Pending.
The employment authorization category depends on the continuing pendency of Form I-485 rather than the priority date remaining current every month.
Advance parole can continue
A visa-regressed adjustment applicant can generally continue requesting advance parole while Form I-485 remains pending.
However, international travel still requires analysis of:
- I-485 abandonment;
- Advance-parole validity;
- H or L travel exception;
- Prior unlawful presence;
- Matter of DELCARMEN-LARA;
- Prior removal;
- Criminal inadmissibility; and
- Other grounds affecting return.
Maintaining H-1B or L-1 can be especially useful during retrogression
Long visa backlogs can make an independent nonimmigrant status strategically valuable.
Potential advantages include:
- Independent lawful status;
- Independent work authorization;
- H or L international travel options;
- Protection if Form I-485 is later denied; and
- Less dependence on C09 EAD and advance-parole processing.
Employment-based portability during retrogression
Retrogression can cause an employment-based Form I-485 to remain pending well beyond 180 days.
Where the statutory requirements are satisfied, INA §204(j) can permit portability to a new permanent job in the same or a similar occupational classification.
The applicant should evaluate:
- Approved or otherwise qualifying I-140;
- I-485 pending at least 180 days;
- New permanent job offer;
- Same or similar occupational classification;
- Form I-485 Supplement J; and
- Continuing underlying petition validity.
An I-485 can continue accumulating pending time for AC21 portability purposes even though USCIS cannot issue final permanent residence during visa unavailability.
See AC21 Job Portability.
I-140 withdrawal during retrogression
A long retrogression period can increase the likelihood of employer changes or petition withdrawal.
The effect depends on:
- I-140 approval date;
- I-485 filing date;
- How long Form I-485 has been pending;
- Date of employer withdrawal;
- Whether the petition remains valid for relevant purposes;
- Whether INA §204(j) applies; and
- Whether USCIS later revokes for substantive reasons.
Transfer of underlying basis can sometimes help
An applicant may become eligible under another immigrant petition while the original category remains retrogressed.
USCIS may allow transfer of the pending Form I-485 where:
- The new basis is legally eligible for transfer;
- Adjustment eligibility remained continuous;
- The new petition is properly filed or approved as required;
- A visa is immediately available under the new basis at the time required for transfer;
- The applicant requests transfer in writing; and
- USCIS favorably exercises discretion.
Priority-date retention can matter
Employment-based applicants with multiple I-140 petitions should determine whether an earlier priority date can be retained under the applicable regulations.
A retained priority date can materially affect:
- When the new category becomes current;
- Whether transfer is useful;
- Whether a later petition provides a faster route to final approval; and
- Derivative timing.
Derivative applicants
Visa retrogression can delay principal and derivative applicants together.
Derivative eligibility should continue to be monitored for:
- Marriage;
- Divorce;
- Age;
- CSPA;
- Principal eligibility;
- Cross-chargeability;
- Transfer of underlying basis; and
- Independent immigrant petitions.
The pending application remains alive, but family relationships and other continuing eligibility requirements can still change while the case waits.
CSPA during long retrogression
Child Status Protection Act questions can become particularly important where the Visa Bulletin changes after filing.
The analysis should identify:
- Child's biological age;
- Petition pending time;
- Date a visa became available under the applicable USCIS CSPA policy;
- Date the child sought to acquire permanent residence;
- Applicable Visa Bulletin chart;
- Any later retrogression; and
- Whether the child remains unmarried.
USCIS may complete some processing before the priority date becomes current
While a visa-regressed I-485 remains pending, USCIS can still perform case processing such as:
- Biometrics;
- Background checks;
- RFE issuance;
- Medical review;
- Interview;
- Supplement J review;
- Underlying petition review; and
- Other adjudicative steps.
USCIS can interview or otherwise process the case and still be unable to approve until visa availability returns.
A current priority date does not guarantee immediate approval
When the Visa Bulletin advances again, USCIS still must complete all other adjudicative requirements.
The case can remain pending because of:
- Security checks;
- RFE response;
- Medical issue;
- Underlying petition review;
- Employment portability;
- Admissibility;
- Interview;
- File transfer; or
- Other USCIS processing.
Visa availability removes one legal obstacle; it does not force immediate approval.
Example: EB-2 priority date retrogresses after filing
An EB-2 applicant properly files Form I-485 when USCIS permits filing. Several months later, the Final Action Date moves backward and the priority date is no longer current. USCIS generally keeps Form I-485 pending, and the applicant can continue renewing C09 employment authorization while waiting for final visa availability.
Example: another category becomes current
An applicant's original EB-3 adjustment basis retrogresses, but the applicant later receives approval of an EB-2 petition with a retained earlier priority date that is current. The applicant may consider a written transfer-of-underlying-basis request if the USCIS requirements are satisfied rather than filing a duplicate I-485 solely because the original category retrogressed.
Retrogression checklist
- Confirm priority date.
- Confirm preference category.
- Confirm country of chargeability.
- Check monthly Visa Bulletin.
- Check USCIS adjustment chart selection.
- Distinguish Dates for Filing from Final Action Dates.
- Do not refile solely because of retrogression.
- Renew C09 EAD when needed.
- Renew advance parole when needed.
- Consider maintaining H or L status.
- Review INA §204(j) portability.
- Review I-140 withdrawal risk.
- Review priority-date retention.
- Consider transfer of underlying basis.
- Review CSPA for derivatives.
- Monitor family-status changes.
- Continue responding to all USCIS notices.
Common retrogression mistakes
Refiling the I-485
The applicant assumes retrogression canceled the properly pending application.
Confusing Filing and Final Action Charts
The applicant assumes eligibility to file means USCIS can immediately approve permanent residence.
Stopping EAD Renewals
The applicant assumes C09 eligibility ended because the priority date retrogressed.
Ignoring Portability
A long-pending employment adjustment applicant remains tied unnecessarily to an original job without reviewing INA §204(j).
Ignoring a Better Basis
The applicant waits in a retrogressed category even though another current immigrant classification may support transfer.
Ignoring Derivative Changes
The applicant treats retrogression as though marriage, divorce, age and other continuing eligibility requirements no longer matter.
Typical Sequence After Visa Retrogression
A properly filed Form I-485 can remain pending through several changes in visa availability. A typical sequence may look like this:
Primary authorities
Related INA245.com guides
Frequently asked questions
Will USCIS deny my I-485 if my priority date retrogresses?
Not ordinarily solely because of retrogression. A properly filed application generally remains pending until a visa number again becomes available.
Do I need to file another I-485 when my date becomes current again?
Generally no. USCIS can continue adjudicating the existing pending application.
Can I renew my EAD during retrogression?
Generally yes while Form I-485 remains pending and the applicant continues to qualify under category C09.
Can I renew advance parole?
Generally yes while the adjustment application remains pending, subject to the current Form I-131 rules.
Can I change employers while my category is retrogressed?
Potentially. Qualifying employment-based applicants may use INA §204(j) portability once the statutory requirements are satisfied.
Can I transfer my I-485 to another current category?
Sometimes. USCIS permits transfer of underlying basis where continuity, visa availability and the other transfer requirements are satisfied.
Visa retrogression usually changes when USCIS can approve the I-485—not whether a properly filed I-485 continues to exist.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving visa retrogression, priority dates, CSPA, AC21 portability, transfer of underlying basis, I-140 withdrawal, EADs, advance parole, RFEs, NOIDs and delayed Form I-485 adjudication.
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