The Retrogression Spouse Trap

by Leena Snellman

With the fast forward movement of EB-2 India and China priority dates, applicants are rushing to file their I-485 applications before any future retrogression occurs. In the vast majority of cases, this is indeed the prudent thing to do, particularly as the Department of State has advised that retrogression in the EB-2 India and China categories is a "distinct possibility^[1]." However, the good news of EB-2 India and China priority date advancement also contains some traps, particularly when it comes to derivative spouses who cannot file the I-485 at the same time as the primary spouse.

One relatively common scenario is where the derivative spouse is spending an extended period of time in his or her home country, either for family or work related reasons, and is unable to travel back to the US to file their I-485 with the primary spouse. While the derivative spouse remains eligible to apply for adjustment of status (i.e. file the I-485) even after the primary applicant has filed, the priority date must be current in order for the derivative spouse to file. Therefore, if priority dates retrogress after the primary applicant files and before the derivative spouse files, this could lead to inconvenience, delays, and in a worst case scenario, separation of the couple for many years. As history has shown, it is impossible to predict the movement of priority dates, and retrogression could last for many years, especially in the EB-2 India and China categories.

For example, below are three potential "trap" scenarios for derivative spouses who are unable to file the I-485 with the primary applicant^[2] :

1. Primary applicant files while derivative spouse is out of the US. Priority dates retrogress before primary applicant's I-485 is approved. Primary applicant continues to maintain H-1B status. Derivative spouse enters on H-4 status. Derivative spouse cannot file I-485 until priority dates become current again. The primary applicant is entitled to receive the EAD work authorization document and the Advance Parole travel document while his or her I-485 is pending, but the derivative spouse is not entitled to these benefits. Furthermore, as the derivative spouse is relying on H-4 status, the primary applicant must continue maintaining H-1B status, which may restrict his or her job flexibility, as s/he will need to remain with an employer who is willing to maintain H-1B status, despite the fact that s/he could otherwise work on the EAD.
2. Primary applicant files while derivative spouse is out of the US. Primary applicant's I-485 is approved before derivative spouse returns to the US. Derivative spouse is no longer eligible for H-4 status, as primary applicant is no longer in H-1B status, now that primary applicant is a permanent resident. Hence, derivative spouse is stuck outside the US, with the only option being to consular process for the immigrant visa, also known as "follow to join". Following to join can take a year or longer in many locations, resulting in the couple being separated during that time. If priority dates remain current, the derivative spouse will eventually be able to obtain the immigrant visa through the consulate and enter as a permanent resident.
3. Worst Case Scenario - Primary applicant files while derivative spouse is out of the US. Primary applicant's I-485 is approved before derivative spouse returns to US. Derivative spouse is no longer eligible for H-4 status, as primary applicant is no longer in H-1B status, now that primary applicant is a permanent resident. Priority dates retrogress before derivative spouse obtains immigrant visa through consular processing. Unless derivative spouse is able to obtain his or her own non-immigrant visa status, e.g. H-1B or L-1, s/he will be stuck outside the US for the duration of visa retrogression in the EB-2 India or China category, which could potentially be for many years. It is unlikely that the derivative spouse would be issued any purely nonimmigrant intent visa, such as visitor (B-1/B-2) or student (F-1), given that s/he is the spouse of a US permanent resident.

While it is impossible to predict if / when future retrogression will occur, and how far back the dates will go, the worst case scenario envisioned above is relatively likely, given the Department of State's statements regarding future retrogression, and the fact that consular "follow to join" immigrant visa cases take a year or longer. Perhaps the one saving factor is that I-485s are currently taking approximately 4-8 months, according to the latest USCIS published processing times , reducing the likelihood of the primary applicant's I-485 approval soon after filing. However, the processing time of any individual I-485 can vary greatly, and some applications are approved much faster than the standard processing times^[3]. Therefore, it is possible that the primary applicant's I-485 could be approved before future retrogression, and before the derivative spouse can either return to the US, or "follow to join" through the consulate.

Recommendations

Given the risks, and particularly the potential worst case scenario of spouses being separated for several years, it is advisable for a couple in the EB-2 India or China category to file their I-485s together. If this is not possible, then the safest option in most cases would be to delay filing both spouses' I-485s until the derivative spouse returns to the US such that the couple can file together. The couple must understand, however, that this could potentially result in a delay of many years before they can file the I-485s, if their priority date retrogresses in the meantime. The final, and riskiest, option, would be to file the primary applicant's application, and carefully monitor the Visa Bulletin to see if their priority date is retrogressing. As the Department of State typically releases the Visa Bulletin 2 - 3 weeks prior to the first of the month, the couple would have 2 - 3 weeks in which the derivative spouse would have to return to the US, and prepare and file the I-485. This is a very tight timeline in which to travel back to the US and submit the I-485, and hence it is risky to rely on this option.

Conclusion

The forward movement of EB-2 India and China priority dates has been a very positive development for a large number of applicants. In the vast majority of circumstances, it is advisable to file the I-485s as quickly as possible, so as not to miss out on this opportunity. However, it is important to consider all of the facts and circumstances of a particular applicant's and their family's case, to make sure there are no hidden traps, particularly for a derivative spouse who is outside the US.

¹ February 2012 Visa Bulletin, Department of State website, http://www.travel.state.gov/visa/bulletin/bulletin_5640.html (February 5, 2012).

² The same considerations would apply to derivative children. Derivative children may also have the added risk of potentially 'aging out' due to prolonged retrogression. It is beyond the scope of this article to address "aging out" issues and the Child Status Protection Act (CSPA).

³ US Citizenship and Immigration Services website, www.uscis.gov (February 5, 2012).

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