Retrogression and Working for your Sponsor on EAD

Background

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 you have a pending green card application but your priority date (i.e. your place in line) has retrogressed, this means that your green card cannot be issued yet. During retrogression, you will still receive your EAD/AP and you can legally remain in the U.S. as an “AOS applicant”.  

Q: I have my EAD but my priority date has retrogressed. Can I delay starting work until my priority date becomes current again, or until I receive my green card?

No, we do not allow clients to delay their start date. You have an I-140 approval and green card based EAD, and you must start work 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 will impact your pending green card application.

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 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, we do not allow clients to delay their start date. You have an I-140 approval and green card based EAD, and you must start work using the EAD. The pending I-485 grants you a period of authorized stay in the U.S. (as an “AOS Applicant”) while your I-485 is pending. 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 will impact your pending green card application. ‍

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 extremely rare event that your I-485 is denied, you will then need to depart the U.S. for Consular processing. Because the risk of I-485 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 work 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 issues 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 an 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.

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