Recapturing Priority Dates for Family-Sponsored Immigrant Visa Applications

• Introduction to the Child Status Protection Act
• Automatic Conversion of Family-Based Immigrant Visa Petitions
• Limitations on Recapturing Priority Dates for Sons and Daughters of LPRs
• Advice: The Benefits and Challenges of Recapturing Priority Dates

Introduction to the Child Status Protection Act

The Child Status Protection Act (CSPA) sets guidelines for when a child of a USC or LPR who is the beneficiary of a family-sponsored immigrant visa petition [see article] may continue to be treated as a child for the purpose of staying in the same preference category and retaining the original priority date [date when the I-130, Petition for Alien Relative, was filed]. United States Citizenship and Immigration Services (USCIS) will take the child's age at the time an immigrant visa number became available to the parent and deduct the time that the petition has been pending from the child's age [INA § 203(h)(1)]. If the result is less than 21 years of age, the child may file for LPR status in the same preference category provided that he or she does so within one year of an immigrant visa number becoming available [Id.]. Furthermore, a child who is under 21 years of age when an immigrant visa number becomes available will be treated as a child for the duration of the adjudication, again provided that the child files for the immigrant visa within one year of the immigrant visa number becoming available.¹

Recapturing Priority Dates: Automatic Conversion of Family-Sponsored Preference Categories

Pursuant to INA § 203(h)(3), if a child “ages out,” that is he or she exceeds 21 years of age and is not covered by the above provisions of the CSPA, his or her petition will be automatically converted to the appropriate preference category. This, combined with regulations found in 8 C.F.R. § 204.2(i), explain the rules for recapturing a priority date.

For example, pursuant to 8 C.F.R. § 204.2(i), if the adult son or daughter of a U.S. citizen (USC) [First Preference category] marries, he or she will be moved to the Third Preference category and be permitted to recapture the priority date for the original petition under the first preference category. Where the minor child of a lawful permanent resident (LPR) turns 21, he or she may be converted from Second Preference A category to the Second Preference B category. The following is a chart showing how petitions may be converted and priority dates recaptured with the various family-based preference categories:

Before continuing, please note that there is no preference category for the married sons and daughters of LPRs. Therefore, if the son or daughter of an LPR marries before his or her petitioning parent naturalizes, the second preference category petition will be voided. While it may be possible for individuals in this situation to pursue a different avenue toward obtaining LPR status, it is not possible for them to recapture the original priority date.

Limitations on Recapturing Priority Dates for Sons and Daughters of LPRs

Initially, there was a question of how broadly INA § 203(h)(3) would be applied, especially with regard to petition beneficiaries in the second preference category [minor children of LPRs and adult sons and daughters of LPRs]. Ultimately, the U.S. Supreme Court settled the matter for now in Scialabba v. Cuellar de Osorio, No. 12-930, 573 U.S. __, 2014 WL 2560467 [PDF version], by upholding the Board of Immigration Appeals (BIA) decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) [PDF version]. Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference visa petition is filed by the same petitioner.⁴ That is, where the petition “can be seamlessly converted from one family preference category to another without the need for a new sponsor.”⁵ To use an example, Matter of Wang concerned a man from the China whose LPR parent filed a petition for him in the second preference B category for adult sons and daughters of LPRs. The beneficiary of the petition had previously had a petition filed on his behalf by his brother under the fourth preference category. He was assigned the priority date of the new second preference petition rather than the priority date of the original fourth preference petition, and filed suit as a result. However, the BIA ultimately held that, because the petition under the petition under the second preference category required a different petitioner and sponsor than the original petition under the fourth preference category, the petition beneficiary could not recapture the original priority date.

The key takeaway is that in order to recapture the priority date, the new petition must be filed by the original petitioner. This is why in a scenario such as in Matter of Wang, where the original petitioner was a USC sibling and the second petitioner was an LPR father, the original priority date could not be recaptured. The rule established in Matter of Wang, and ultimately upheld by the U.S. Supreme Court in Scialabba, significantly limits the scenarios in which a priority date may be recaptured.

Advice: The Benefits and Challenges of Recapturing Priority Dates

Being able to recapture the priority date may significantly affect when a family-sponsored immigrant visa applicant in one of the four limited preference categories may be eligible to formally file for an immigrant visa [see article].

In order to apply for an immigrant visa, the applicant's priority date must be before the filing date or final action date (whichever the USCIS requires applicants to use) for that month. For example, let us refer to the September 2016 visa bulletin [see article] (please note that this is only being referenced to illustrate the benefits of recapturing priority dates and that the dates on the September 2016 Visa Bulletin are only relevant to immigrant visa applicants in September 2016). The final action cutoff date for an applicant for an immigrant visa in the Fourth Preference category (F4) from anywhere but China, India, Mexico, or the Philippines was October 8, 2003. However, the final action cutoff date for an applicant in the Second Preference B (F2B) category would be February 1, 2010. Because the final action cutoff date in October of 2016 for F2B petitions was over six years after the cutoff date for F4 petitions, being able to recapture an F4 priority date for an F2B petition would expedite the immigrant visa process for eligible applicants.

But since Matter of Wang rendered the recapturing F4 priority date scenario moot, let us look at the benefits of recapturing priority dates under the law as it is applied today. The filing dates in the F2A preference category for unmarried minor children of LPRs was November 15, 2014 (for applicants not from Mexico); however, the final action dates in the F2B category for applicants not from Mexico or the Philippines was February 1, 2010. If an applicant in the F2A category ages out, being able to recapture the original priority date may make a difference of many years in terms of eligibility to file for an immigrant visa. This difference is not only significant for when an applicant obtains LPR status, but also makes a difference in when the visa applicant will ultimately be eligible to seek naturalization. Furthermore, since petition beneficiaries under the F2B category may not marry without invalidating the F2B petition, being able to recapture the priority date may not simply be a matter of convenience, but a matter of when the petition beneficiary may be able to marry and start a family.

Recapturing priority dates is often a complicated process that necessitates the proper filing of the second petition by the same sponsor who filed the first petition. In the event that an immediate relative or second preference child may turn 21 years of age before an immigrant visa number is available, an experienced immigration attorney should be consulted for a full assessment of the situation. In the event that the child will not be protected under the CSPA, the experienced immigration attorney will be able to guide the parties in ensuring that the petition beneficiary takes the necessary steps in order to recapture his or her priority date.

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1. For the section: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1108, citing CSPA, PL 107-208; Cable DOS, 03-State-15049 (Jan 17, 2003) at 22, published on AILA InfoNet at Doc. No. 03020550; 8 C.F.R. § 103.9
2. Kurzban 1109, explaining that whether a F2A will be converted to an IR depends on whether the beneficiary could was under 21 at the time of the petitioner's naturalization: citing INA § 201(f)(1); 8 C.F.R. § 204.2(i)(3); Matter of Zamora-Molina, 25 I&N Dec. 606, 609-11 (BIA 2011) [where parent naturalized after child turned 21, son/daughter ineligible for IR classification because the CSPA does not apply for IR calculations under INA § 201(f)].
3. Kurzban 1109, explaining that a F2B second preference son/daughter may elect to not transfer to first preference by filing a request with USCIS, and may retain the original priority date associated with the original petition provided that it is properly filed [INA § 204(k)]. However, pursuant to Matter of Zamoria-Molina, 25 I&N Dec. 606, 611-15 (BIA 2011) [parent naturalized after child turned 21 and child was ineligible for opt-out because INA § 204(k)(2) only applies to the F2B category], this does not apply to F2A's for purpose of subsequently staying in the second preference category as F2B.
4. Kurzban 1110, also citing Virtue, Acting Ex. Assoc. Coo'r INS, HQ 70/23.1-P (June 18, 1997), reprinted in 2 Bender's Immigr. Bull. 590 (July 15, 1997) [derivative beneficiary loses child status upon reaching 21 unless he or she becomes the derivative beneficiary filed on his or her behalf by the original petitioner].
5. Scialabba v. Cuellar de Osorio, No. 12-930, 573 U.S. __, 2014 WL 2560467

RESOURCES AND MATERIALS:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1109-10, Print. Treatises & Primers.