Strategies of Dealing with Retrogression 
 

The retrogression of the EB1 and EB2 employment-based categories for India and China beginning October 1, 2005, was detrimental to many intending immigrants and employers. It is important to understand and identify other options for those affected to maintain their immigration status while waiting for a current priority date. 

Really Retrogressed?

First of all, one has to ascertain that his or her priority date is indeed not current.  As of 10/1/2005, all EB-3 categories are retrogressed, but only EB-1 and EB-2 cases whose visa categories are charged to China or India are retrogressed. For example, persons who were born in Hong Kong, Macau, Taiwan, England, Singapore, Malaysia, Indonesia, etc., are currently not affected by retrogression. Furthermore, if an applicant’s spouse is not born in a retrogressed country, she may use her spouse’s country of birth as the country of chargeability. However, the birth places of an applicant’s children have no bearing on the issue.  

Extraordinary Ability Applicants

For those people who were planning on filing for EB1 Extraordinary Ability or EB2 National Interest Waiver applications, they may also consider filing for Schedule A, Group II, immigration. As our previous articles discussed, this category generally allows younger individuals of exceptional ability in the sciences and arts, or performing arts to apply for a green card. The requirements are slightly different but the visa numbers for this category is still current. Another option for foreigners with extraordinary ability is the non-immigrant O-1 visa. Essentially, the criteria for granting an O-1 non-visa are similar to those of EB1 Extraordinary Ability immigrant visas. It is important to note that O-1 specifically allows persons of “Extraordinary Achievement” with respect to motion pictures and television to apply. The “Extraordinary Achievement” standard is generally lower than the “Extraordinary Ability” standard.  

H1B Holders

Under AC21 legislation, if an H1B visa holder’s I-485 cannot be adjudicated because of quota backlogs, her employer may also apply for extension of H1B time, in increments of 3-years, on her behalf as long as the I-140 petition has been approved. The H-4 dependents may also be similarly extended. Even before her I-140 was approved, a H1B worker may also obtain one-year extensions of her H1B time, if her labor certification or I-140 petition has been pending for more than 365 days. For those individuals who have an approved I-140 petition and a pending I-485 for more than 180 days, they may port the applications to a new employer should they lose their jobs in the interim. 

Changes in Priority Dates and Law

Finally, the priority dates change on a monthly basis, moving forward or backward. Immigration law and policies also change on a daily basis. It is therefore extremely critical that you keep in contact with a qualified immigration attorney to keep yourselves updated. For instance, acting immediately on the news of retrogression, our office was able to assist quite a few clients in filing their I-140/I-485 (EB1, NIW, LC-based) and other auxiliary applications before the 10/1/2005 retrogression deadline. These applicants and their dependents will be able to stay and work legally in the United States, and travel internationally, while their applications are pending.