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Priority Date Recapture and Retention in Family-Based Immigration

Family-based immigration can take many years to complete due to slow processing times, huge backlogs, and the limited number of visas available in the family-sponsored, preference categories.

The priority date marks the immigrant visa/green card applicant’s place in the visa queue.  Being able to recapture and retain an old priority date from a previously filed petition in a new petition makes a big difference.

The priority date is when USCIS received the Form I-130, Petition for Alien Relative, from the U.S. citizen or permanent resident petitioner on behalf of the beneficiary.

During the process, certain changes in family circumstances may lead to complications, delays, and even termination of the case. An example is when an unmarried son of a U.S. citizen petitioner marries or when a minor child beneficiary turns age 21 before he immigrates.

Some situations involve automatic conversion from one preference category to another, where the old priority date is kept.  Others require the filing of a new, I-130 immigrant petition, which might not allow priority date recapture and retention.

Family-Sponsored, Preference Categories

There is no limit on the number of immigrant visas/green cards available to immediate relatives.  An immediate relative is the spouse or unmarried, minor child (under age 21) of a U.S. citizen, as well as the parent of an adult U.S. citizen (age 21 or older).

Family-sponsored, preference categories, however, have a maximum number of visas available each fiscal year.  Congress allocates visas to each preference category as follows:

First: (F1) Unmarried Sons and Daughters, age 21 or older, of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Unmarried Children, under age 21, of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

Priority Date

Immigrant visas or green cards may be issued in family-sponsored, preference categories only when the priority date is current.

A priority date is current if the I-130 petition was filed before the cut-off date listed in the U.S. Department of State’s monthly Visa Bulletin for that category. The Visa Bulletin lists two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status (green card) applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing. Each month, USCIS also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing I-485 applications.

Automatic Conversion of Preference Categories 

While a family-based immigration case is pending, beneficiaries may move from one category to another, or lose immigrant visa eligibility altogether, due to changes in circumstances.

Federal regulations at 8 CFR 204.2(i) provide for automatic conversion from one family-sponsored, preference category to another, and allow for recapturing and retention of the old priority date in the following situations:

Preference Category Situation in which petition is automatically converted and old priority date is recaptured and retained

 

Immediate Relative/IR

Unmarried, minor child (under age 21) of U.S. citizen

 

Child marries: convert from Immediate Relative/IR to Third Preference/F3

 

Child turns age 21 and is not protected by the Child Status Protection Act (CSPA): convert from Immediate Relative/IR to First Preference/F1

 

First Preference/F1

Unmarried adult son or daughter (age 21 or older) of U.S. citizen

Son or daughter marries: convert  from First Preference/F1 to Third Preference/F3
Second Preference A/F2A

Minor child (under age 21) of permanent resident

Petitioner becomes a naturalized U.S. citizen while child is under age 21: convert from Second Preference A/F2A to Immediate Relative/IR. NOTE: A new I-130 petition must be filed in the Immediate Relatives category if the child was listed only as a derivative beneficiary in an I-130 petition for the petitioner’s spouse, and is not already a principal beneficiary of an-130 filed by petitioner.

 

Petitioner becomes a naturalized U.S. citizen after child, who is protected by CSPA, turns 21: convert from Second Preference A/F2A to First Preference/F1.  NOTE: If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.  The petitioner may refrain from applying for naturalization to prevent adverse effects on the child.

 

Child turns 21 and is not protected by CSPA: convert from Second Preference A/F2A to Second Preference B/F2B

Second Preference B/F2B

Unmarried adult son or daughter ( age 21 or older), of permanent resident

Petitioner becomes a naturalized U.S. citizen: convert from Second Preference B/F2B to First Preference/F1. NOTE: If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

 

Third Preference/F3

Married son or daughter of U.S. citizen

Son or daughter divorces: convert from Third Preference/F3 to Immediate Relative/IR (if under age 21) or to First Preference/F1( if 21 or older)

 

In most cases, no new I-130 petition has to be filed when automatic conversion applies. The petitioner just has to notify USCIS, the National Visa Center or the U.S. Consulate of the conversion.

Priority Date Recapturing or Retention

Generally, an earlier priority date may be recaptured and retained if it is the same petitioner filing for the same beneficiary (including derivative beneficiaries) and the prior I-130 was not terminated or revoked.

Beneficiary Gets Married

Marriage of the beneficiary leads to automatic conversion in certain situations. For example, if an unmarried, minor child (under age 21) of a U.S. citizen marries, the petition is automatically converted from the Immediate Relatives to F3 category, but the original priority date is kept.

If an unmarried adult son or daughter (age 21 or older) of a U.S. citizen marries, the petition is automatically converted from the F1 to to F3 category, but the original priority date is kept.

In contrast, if an unmarried child (under age 21) of a permanent resident (F2A category) or  unmarried adult son or daughter (age 21 or older) of a permanent resident (F2B category) marries, the petition is automatically revoked or terminated as a matter of law because there is no category for permanent residents to file for married children. Even if the child/son/daughter divorces, he or she cannot regain the status of a F2A or F2B preference because the I-130 was revoked.  An annulment, however, might serve to reinstate the second preference status.

If the permanent resident parent becomes a U.S. citizen and then files a new petition for the child/son/ daughter in the F3 category, a new priority date will apply and the old priority date cannot be recaptured.

Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

INA § 203(h)(3) states that if a child “ages out” (turns age 21) and is not covered by age-out protections under the Child Status Protection Act (CSPA), the petition for him or her will be automatically converted to the appropriate preference category.

Eligibility criteria for CSPA include:

  • Beneficiary must have a pending or approved visa petition on or after August 6, 2002
  • Beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.
  • Beneficiary must “seek to acquire” permanent residence within 1 year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of an adjustment/green card application or immigrant visa application. The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the I-130 petition was approved, whichever is later.

A CSPA formula is used to determine the child’s “CSPA age.” USCIS will take the child’s age at the time an immigrant visa number became available and deduct the time the I-130 petition was pending from the child’s age. If the result is less than 21 years of age, he keeps the same preference category provided he seeks to acquire permanent residence within one year of  when an immigrant visa or green card becomes available.

When the minor child of a U.S. citizen turns 21 and is not protected by CSPA, he or she is converted from the Immediate Relative to F1 category.

When the minor child of a permanent resident turns 21 and is not protected by CSPA, he or she is converted from the F2A to F2B category.

Derivative Beneficiary “Ages Out” (Turns Age 21) and Is Not Protected by CSPA

A derivative beneficiary includes a minor child (under age 21) of a principal beneficiary of an I-130 petition. When the derivative child turns 21 and “ages out,” the child is no longer eligible to immigrate as a derivative beneficiary of the I-130 petition for her parents. Therefore, a new petition must be filed for the former derivative child as the principal beneficiary.

INA § 203(h)(3), regarding the retention of priority dates, states, “If the age of an alien is determined [by the CSPA calculator] to be 21 years of age or older for the purposes of [retaining status as a derivative beneficiary in the preference categories], the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

In a 2009 case, Matter of Wang, the BIA found that while the language in section 203(h)(3) is ambiguous, Congress intended for priority dates to be retained only when the same petitioner filed a second petition for the same beneficiary. The BIA held that retention of the old priority date was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” The BIA found § 203(h)(3) did not apply to derivative beneficiaries in other categories.

Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference petition is filed by the same petitioner. The case involved a beneficiary from China whose LPR parent filed a petition for him in the F2B category. He had a petition previously filed on his behalf by his brother under the F4 category. He sought to recapture the old priority date under the F4 category. But the BIA held he could not recapture the original priority date because the petition under the F2B category required a different petitioner and sponsor than the original petition under the F4 category.

In its June 2014 decision in Scialabba v. Cuellar de Osorio, the U.S. Supreme Court agreed with the BIA’s holding. The Supreme Court read section 203(h)(3) to allow only derivative children of beneficiaries of F2A petitions (for spouses and children of permanent residents) to retain the priority date of their parent’s original petition.

The Supreme Court’s decision supersedes earlier appellate court holdings, such as Khalid v. Holder, in which the Fifth Circuit Court of Appeals rejected Matter of Wang and held that the CSPA priority date retention applies to all petitions where derivative beneficiaries may “age out,” not just to second-preference petitions.

To recapture the priority date, the new petition must be filed by the same, original petitioner. The priority date cannot be recaptured in a situation like in Matter of Wang, where the original petitioner was a U.S. citizen brother and the second petitioner was a permanent resident father. The rule set forth in Matter of Wang, and upheld by the U.S. Supreme Court in Scialabba, limits situations in which a priority date may be recaptured in a new I-130 filing.

Derivative beneficiaries under any other preference category besides F2A may not retain the priority date of the petition where their parents were principal beneficiaries. These other derivative beneficiaries include the children of unmarried sons and daughters of U.S. citizens (First Preference/F1); the children of unmarried sons and daughters of permanent residents (Second Preference B/F2B); the children of married sons and daughters of U.S. citizens (Third Preference/F3); and the children of siblings of U.S. citizens (Fourth Preference category, F4).

Scenario 1Maria is the principal beneficiary of an I-130 petition filed by her permanent resident spouse, Thomas, in the F2A (spouse of permanent resident) category. Maria’s daughter, Ana, is included in the petition as a derivative beneficiary. But Ana ages out (turns age 21) and may no longer follow to join the principal beneficiary.

The original petitioner, Thomas, then files an I-130 petition for Ana in the F2B (adult, unmarried daughter of permanent resident) category. Ana may recapture the old priority date because she was the derivative of an F2A beneficiary.

Scenario 2: Maria is the principal beneficiary of an I-130 petition field by her U.S. citizen brother, Joaquin, in the F4 (sister of adult U.S. citizen) category. Maria’s daughter, Ana, is included in the petition as  a derivative beneficiary. But Ana ages out (turns age 21) and can no longer follow to join the principal beneficiary.

The original petitioner, Joaquin, may not file an I-130 petition for Ana because there is no category for nieces of a U.S. citizen. Ana’s now permanent resident mother, Maria, then files an I-130 petition for her in the F2B (adult, unmarried daughter of permanent resident) category. Ana may not recapture the old priority date because she was the derivative of an F4 beneficiary.

Ana’s immigration process will be delayed more in Scenario 2 because, unlike in Scenario 1, she cannot retain the priority date of the parent’s original I-130 petition. Because she has aged out, she needs to have a new I-130 petition with a new priority date filed for her.

Petitioner Naturalizes

When a permanent resident petitioner becomes a naturalized U.S. citizen, he may request an upgrade of his I-130 petition for his spouse from the F2A to Immediate Relatives category. But if he did not file an I-130 petition for his minor child (under age 21), and simply listed him as an F2A derivative beneficiary on the I-130 petition for his spouse, he will need to file a new I-130 petition for the child in the Immediate Relatives category. The old priority date may be recaptured to help the child immigrate earlier with the spouse.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a minor child who turns 21, but is protected by CSPA, will convert from the F2A to F1 category. If there is more backlog in the F1 category, the beneficiary may NOT opt out of the automatic conversion.

When a permanent resident petitioner becomes a naturalized U.S. citizen, his I-130 petition for a an unmarried son or daughter (age 21 or older) will convert from F2B to F1 category. If there is more backlog in the F1 category, the beneficiary may opt out of the automatic conversion and stay in the F2B category by sending a request letter to USCIS, NVC or U.S. Consulate.

Conclusion

The priority date (i.e. the date the I-130 petition was filed with USCIS) determines when you may immigrate to the United States or adjust to permanent resident status.

Determining whether a beneficiary or derivative beneficiary is protected by CSPA after aging out (turning 21) is complicated. Seeking to recapture and retain an earlier priority date to reduce immigration delays can be tricky.

Consult an experienced immigration attorney to fully evaluate your situation, including whether CSPA applies or whether an old priority date may be recaptured and retained.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Kevin Haggerty