EB-3 Retrogression October 2026: How Matter of Ho Shields Adjustment Applicants in Removal

The October 2026 Visa Bulletin created a unique filing opportunity for certain employment-based applicants, including EB-4 Special Immigrant Juveniles (SIJs), by advancing the Dates for Filing chart to January 1, 2025 — even as the Final Action Date remains December 15, 2022. USCIS guidance permits I-485 filings under the Dates for Filing chart, but attorneys Cyrus Mehta and Damira Zhanatova caution that filing alone does not insulate individuals from DHS enforcement. ICE has been coordinating with TSA to detain and place in removal proceedings those with pending I-485 applications whose underlying visa status has expired. The pivotal legal protection in these circumstances comes from Matter of Ho, 15 I&N Dec. 692 (BIA 1976). The BIA held in that case that where an adjustment application is approvable in all other respects, and the only obstacle is subsequent visa number unavailability, the case must be held in abeyance rather than denied. This protection applies in removal proceedings before an Immigration Judge, not just at the USCIS level — meaning respondents can invoke Ho to seek a continuance or abeyance when retrogression is the sole remaining barrier. This precedent was reinforced in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), where the BIA confirmed that a respondent with a current priority date at the time of filing does not become ineligible due to subsequent retrogression, though final approval must await visa availability. EOIR's continuance guidance and the Fifth Circuit's decision in Masih v. Mukasey (2008) further cement Ho as binding authority that adjudicators must address when retrogression is at issue. However, Matter of Ho is distinguishable from the recent Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026), which denied a continuance where the applicant had never had a current priority date and faced a nearly four-year wait. The critical distinction is whether the applicant filed during a period of visa availability and was later subject to retrogression — only that scenario triggers Ho's protections. For EB-2 and EB-3 beneficiaries who filed I-485 applications under the Dates for Filing chart during October 2026 and are later placed in removal proceedings after H-1B or L-1 status expiration, the same reasoning may apply. These applicants should consult experienced immigration counsel immediately and assert Matter of Ho and Briones before Immigration Judges to seek abeyance of their cases until a visa number becomes available under the Final Action Dates chart.