The Visa Bulletin is issued every month by the Department of State. It shows which green card applications can be filed, and which filed applications are ready for green card issuance.
Retrogression happens when there is an increase in demand, and the government must create a “cut-off” date for which green card applications can be filed and which green cards can be issued. If your priority date (i.e. the date your LC is filed and it is your place in line) is after the cut-off date, this means that your green card cannot be filed and/or approved yet.
Q: I have my green card based EAD but my priority date has since retrogressed. Can I delay starting work until my priority date becomes current again, or until I receive my green card?
No, you cannot delay your start date. If you have an I-140 approval and green card based EAD, you need to start working for your sponsor using the EAD. Your sponsor is facing a chronic labor shortage and needs you to start work as soon as possible. Failure to timely start working for your sponsor could result in your sponsor withdrawing their sponsoring of your EB-3 petition, which could cause complications to your pending green card case.
In addition, USCIS can inquire whether you have the intent to work the unskilled job before they issue your green card. This inquiry can happen during a I-485 interview or during a random visit from the USCIS immigration officer at your worksite or home.
The best evidence you can provide of your intent is proof that you have already started working in the unskilled role.
Q: I am currently on F-1. My I-140 is approved and my I-485 is pending. Can I wait until I receive my green card to drop my F-1 status and start working for my sponsor?
No, you cannot delay your start date. If you have an I-140 approval and green card based EAD, you need to start working for your sponsor using the EAD. The pending I-485 grants you a period of authorized stay in the U.S. (as an “AOS Applicant”). Because your I-140 is already approved, and I-485 is receipted and pending, our attorney has advised that you are allowed to drop the F-1 status and start working for your sponsor.
Your sponsor is facing a chronic labor shortage and needs you to start work as soon as possible. Failure to timely start working for your sponsor could result in your sponsor withdrawing your sponsoring of your EB-3 petition which could cause complications to your pending green card case.
Q: What if I start working for my sponsor using my EAD, but my green card application is later denied?
If you have an approved I-140, unless you have an inadmissibility concern (such as status violations or criminal record), most likely there will not be issues with the I-485 application. If there were risks with your I-485 application, this would have been flagged to you by your attorney before I-485 was filed.
In the rare event that your I-485 is denied, you will then need to depart the U.S. for Consular processing. Because the risk of denial is rare – and any risk should have been flagged to you by your attorney at the I-485 filing stage – we require clients to start working for their sponsors once their I-140 is approved and EAD is issued. Your sponsor has a chronic labor shortage and needs you to start working as soon as possible.
Q: What if I start working for my employer on EAD but I still do not receive my green card after 1 year of work?
If you worked for your employer for 1 year on EAD and your green card is still pending, we recommend that you continue working for your sponsor to avoid complications with your pending green card application. USCIS may ask whether you have the intent to work the unskilled job to issue your green card, and the best evidence you can provide is proof that you are already working in the role.
Q. Could I switch sponsors after my 1 year of work if I still haven't received my green card?
We generally do not recommend switching employers while the I-485 is still pending. However, after you complete your 1 year with your sponsor, if your I-485 is still pending, you may be able to switch to a new position that is in a "same or similar occupation".
Please reach out to the immigration attorney for a legal evaluation and risk assessment after completing 1 year of work. If your attorney advises that you can switch to a different employer in a "same or similar occupation", they will need to submit a Supplement J form to the government. Please note that this legal work is an additional fee, and it is not included in your contract with BDV.
Q. What are the risks if I choose not to continue working full-time for my sponsor or another job in a "same or similar" occupation?
We highly encourage you to keep working for your sponsor until you get your green card.
The following things could occur while you are waiting for your I-485 approval:
1) You could receive a USCIS officer visit. The officer could check in to make sure you are working and have the intent to work the unskilled job.
2) You could receive a request for an I-485 interview. Even if you have already had one, USCIS may request another. At this interview, your current paystubs to show you are working the unskilled job is the best evidence you can provide of your intent.
3) You could receive a Request For Evidence (RFE) requesting evidence of the unskilled job offer and your intent to perform the job. Again, the best evidence you can provide would be paystubs that you are already working the unskilled job.
Q. This is a long time to work in a minimum wage job with a small salary. How can I afford to live during this time?
We understand that it can be very difficult to work the unskilled job while your green card is pending. Some of our clients have decided to get a second job to make ends meet (as long as it doesn't conflict with your sponsor's schedule). You may also check out this article with tips about how to save and live on a budget while you are working your EB-3 job.
Q. What is BDV doing to solve Retrogression and push things forward?
BDV's Government Relations Team is responding to Retrogression in several ways, as you can read about in this article.
If you need more info about the Visa Bulletin, check out these articles:
If you are already working for your sponsor and have questions about Retrogression, check out this article: Retrogression and Post-hire.