When filing an I-485 application for adjustment of status, the final step in the permanent residence – aka green card – process, an immigrant visa must be immediately available at the time of filing. This is commonly referred to as the priority date being “current.” This is determined by consulting the Visa Bulletin issued by the Department of State and the U.S. Citizenship and Immigration Services (USCIS) for the month that the I-485 application will be filed. Due to long processing times and changes in demand for immigrant visas, it is possible that an immigrant visa may be available at the time the I-485 was filed, but then unavailable by the time USCIS is finally ready to make a decision on the application. This is commonly referred to as retrogression.

What is Retrogression?

In the U.S. immigration system, a phenomenon known as retrogression occurs when the number of immigrant visas available for specific groups or nations retroactively becomes limited, causing delays in the processing of visa applications and their issuance.

Imagine a restaurant that can only hold so many patrons at once in order to use an example to demonstrate retrogression. There are only a few tables in the restaurant, and each one stands in for an open immigrant visa number. The potential immigrants who have submitted their applications for permanent residency are represented by the patrons queuing outside.

When the restaurant first opens, there are enough tables for every person standing outside to eat. Since the visa numbers in this case are current, there has been no retrogression. Customers are seated at the tables while their applications are being processed, and they receive their green cards.

But as time goes on, more and more people come in, and the restaurant begins to fill up. There are fewer vacant tables as more people arrive and demand outpaces the restaurant’s capacity. Retrogression starts at this stage. Some patrons must wait longer for a table to open up because the restaurant cannot seat every patron at once.

The small number of tables in the context of immigration stands in for the predetermined annual cap on immigrant visas. Customers waiting outside correspond to applicants seeking permanent residence, and each table being occupied corresponds to an application receiving an immigrant visa number. Retrogression happens when there is a greater demand for immigrant visas than there are available visas, which causes delays in the processing of the visas and longer wait times for applicants.

Retrogression may be caused by factors including per-country visa number caps, backlogs in certain visa categories, or strong demand from particular nations or categories. Several types of immigrant visas, including family-sponsored and employment-based visas, may be affected by retrogression.

In some cases retrogression is a temporary circumstance, and new visa numbers become available when the restaurant clears tables and serves the guests. Once the backlog is cleared, visa processing resumes as usual, enabling applicants to continue with their immigration process. However, in other cases, retrogression is long lasting, such as when the restaurant runs out of food and is no longer able to serve any guests. This most recently happened on September 6, 2022 and no additional green cards could be approved until October 1, 2023 when the following fiscal year’s visa numbers became available.

What Happens When USCIS Still Approves the I-485 Even When a Visa is No Longer Available?

In some cases, even though retrogression has occurred resulting in a visa no longer being available, USCIS may still approve the I-485 application. The question is whether this approval is appropriate or not.

Many times, while researching cases where this has occurred, we have found that USCIS had previously assigned a visa number to an application while visas were available and then later approves the I-485 after the visa was no longer available. This often happened when the Service was ready to approve an application, but could not because a response to a Request for Evidence had not yet been submitted. These types of approvals are appropriate, because the visa number was assigned to the application prior to retrogression occurring.

In other cases, the approval of the I-485 occurred based on a different underlying basis where a visa number is still available. While USCIS normally requires the applicant to request a transfer of underlying basis in writing, we found many instances where USCIS completed the task on its own in order to approve the I-485. These types of approvals are also appropriate and no further action is needed.

However, there have been cases in which the approval when no visa was available was done in error. For these cases, USCIS will issue a Notice of Intent to Rescind Permanent Resident Status. Under Immigration and Nationality Act Section 246(a):

“If, at any time within five years after the status of a person has been otherwise adjusted … to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person … and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made.”

According to the regulations at 8 CFR 246.1:

“If it appears to a district director that a person residing in his or her district was not in fact eligible for the adjustment of status made in his or her case, … a proceeding shall be commenced by the personal service upon such person of a notice of intent to rescind, which shall inform him or her of the allegations upon which it is intended to rescind the adjustment of his or her status … The notice shall also inform the respondent that he or she may submit, within thirty days from the date of service of the notice, an answer in writing under oath setting forth reasons why such rescission shall not be made, and that he or she may, within such period, request a hearing before an immigration judge in support of, or in lieu of, his or her written answer.

If the answer admits the allegations in the notice, or if no answer is filed within the thirty-day period, or if no hearing is requested within the period, the district director must rescind the adjustment of status and no appeal is available from this decision. If a hearing is requested, and an immigration judge issues a decision that the adjustment of status is to be rescinded, it may be possible to appeal to the Board of Immigration Appeals.

A person whose status as a permanent resident has been rescinded must promptly surrender the green card to the district director.

Because a green card approved in error must be surrendered through the above-mentioned rescission proceedings, it is extremely important to determine whether a green card issued when a priority date is no longer current was issued in error or not. This should preferably be done as soon as the green card is received.

How to Determine Whether the I-485 Approval Was Proper or Whether It Was in Error

USCIS instructs adjustment of status applicants to call the Contact Center if you believe your I-485 was approved in error. We have found that requesting case assistance from the USCIS Ombudsman is more fruitful. The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) assists individuals and employers who are having issues with USCIS. Case Assistance can be requested online by completing DHS Form 7001. Upon submitting the form, the Ombudsman office assigns a Request Number and sends an email confirming receipt of the request.

The CIS Ombudsman currently reviews incoming cases within two business days to identify issues and to prioritize assignment of those cases where Ombudsman intervention may be most effective. Due to unprecedented processing delays at USCIS and the resulting volume of requests for case assistance the Ombudsman receives, the office is temporarily prioritizing action on requests where the description you provide involves:

non-receipts of USCIS notices or decisions, such as requests for evidence, appointment notices, or decisions even though USCIS systems indicate that it issued one, or instances where the U.S. Postal Service returned a card to USCIS as non-deliverable;

noncitizens who may “age-out” of eligibility for the requested immigration benefit within 90 days. See the Child Status Protection Act (CSPA) for additional information;

certain cases involving U.S. military personnel and their families;

instances of clear USCIS administrative error, such as where an application/petition was improperly rejected by USCIS;

individuals in removal proceedings with a hearing scheduled within 6 months;

delays with USCIS notifying the U.S. Department of State’s National Visa Center of an approved petition when your priority date has been current (please share the approval notice); and

expedite requests approved by USCIS more than 2 months ago. 

For other types of requests, the Ombudsman review and response time may be further delayed. The Ombudsman will make contact as soon as one of their immigration law analysts has the opportunity to review the description and documentation provided with DHS Form 7001.  If the Ombudsman confirms that a visa number had already been assigned before retrogression occurred, then the approval is not in error and the green card may be relied upon. The same is true if the Ombudsman confirms that a visa number was available in another category for which the applicant had an approved immigrant petition. However, if the Ombudsman confirms that the approval was in error, it is important to request further information from USCIS to address whether the I-485 application will be reopened and returned to a pending status to await a visa number and whether any unexpired EAD or Advance Parole will remain valid.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily is a frequent speaker and has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.

Reddy & Neumann has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on US. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.