Pursuing Family Unity, Now and in the Year Ahead

By Attorneys Robert L. Reeves and Eric R. Welsh

The holidays are a time for families and friends to gather, and for reflection on times past.  These can be difficult times for families long divided by delays in immigration processing and backlogs in visa numbers, and that difficulty is made worse when visa numbers retrogress.  Just when it looks like the agonizing wait might be over and a visa might be available, the Department of State decides that the wait must continue, sometimes for years longer than anticipated.  For aliens seeking to immigrate based on family-based and employment-based classifications for which visas are not immediately available, visa retrogression can strike a disheartening and frustrating blow.  Still, an alien affected by visa retrogression should not give up all hope for the New Year ahead. 

To keep it in perspective, retrogression is not always as bad as it looks.  Visa numbers fluctuate in an almost unpredictable manner, and retrogressed numbers may be current again sooner than expected.  Visa allocation is not an exact science, and the Department of State must make many estimations and approximations to decide when a visa is “current” in any given month.  When the Department of State overcorrects and provides fewer visas than are congressionally mandated, the numbers for the next month can jump forward by months or years at a time.  Such a swing forward was witnessed in many of the family-based categories through much of this year, especially during the summer months.  Retrogression does not necessarily mean that the wait for the visa will be as long as it appears. 

Aliens in the United States who have filed applications for adjustment of status before the retrogression are entitled to several benefits and protections during any period that a green card application is pending. With a pending adjustment application, the alien is generally entitled to remain in the United States even if the visa numbers have retrogressed.   The alien may also apply for employment authorization, and may renew employment authorization on a yearly basis while waiting for the visa to become current again.  The alien may be eligible to apply for advance parole to travel outside of the United States and return to the United States while the adjustment application is pending.

It is important to maintain attention to visa availability and to act diligently when visas are available for the sake of preserving a child’s eligibility to immigrate as a “child” even after turning 21 years old.  Visa retrogression may force an alien who is currently under the age of 21 to wait years longer than expected for her visa, and she may well be over 21 by the time a visa becomes available again.  Under the Child Status Protection Act, if this alien applies for an immigrant visa during a time when a visa is available and she is still a child, but is unable to complete her immigration due to visa retrogression, she should nonetheless be able to maintain status as a child, even if the visa does not become current again until she is over 21.    

Even if no adjustment application or consular processing application is pending, there are many important reasons to continue to pursue a case even if the dates have retrogressed.  If an alien is seeking a visa abroad through consular processing, the alien may have been contacted by the National Visa Center (NVC) prior to visa retrogression.  If the alien fails to pursue a visa or fails to maintain contact when notified to do so, the NVC can terminate the petition.  It is important to maintain correspondence with the NVC and provide essential required evidence in order to protect a petition from termination.

It is also important to consider alternative avenues to lawful immigration when one door is shut by retrogression.  In some cases, aliens who suffer from visa retrogression may yet be eligible for an immigrant visa.  For example, a backlogged “F2A” petition can be converted to an “immediate relative” petition if a permanent resident petitioning for his spouse becomes a citizen through naturalization.  Visas are provided without limit to immediate relatives, and thus are always current. 

A retrogressed petition may also prove important for purposes of forgiving a period of unlawful status or unlawful entry under section 245(i) of the Immigration and Nationality Act, if the alien is seeking adjustment of status in the U.S.  For example, an alien may be seeking a currently available employment-based visa, but is not eligible for the visa because the alien fell out of lawful status or took employment without authorization.  If the alien is also the beneficiary of a visa that was filed before April 30, 2001, the alien may be able to “cure” the periods of unlawful status and adjust to permanent residency, regardless of whether the older petition is “current.”  In short, a seemingly worthless “retrogressed” visa may prove vital to an adjustment under a newly filed petition from a wholly different petitioner.     

Just as soon as the holidays end, the New Year arrives, and rather than look back, we look towards that which is yet to come.  Visa retrogression is a serious hurdle to family reunification, but it does not have to be an end to hope.  Aliens with current, near current, or recently retrogressed visa numbers should consult an experienced immigration attorney to explore every option to end the long wait for U.S. permanent residence.  

For all of us at Reeves & Associates, Happy Holidays!