Conversion to another Preference Category
By Reuben S. Seguritan
August 05, 2015
Because of the visa backlog, it is possible for certain life changes to occur while the beneficiary waits for a visa number on the basis of an approved family-based preference petition. Changes such as the naturalization of the petitioner, the change in marital status of the beneficiary or his aging out can affect the beneficiary’s visa classification.
Family based preference petitions fall under the following categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).
The change can either shorten or further delay the wait for a visa number. The Department of State sets a cut-off date which is published in the monthly Visa Bulletin. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date is on or after the cut-off date, the applicant needs to wait until the priority date becomes current.
The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the Immigration and Nationality Act (INA).
As a general rule, when there is a change in visa classification, the priority date is retained and there is no need to file a new immigrant petition. If the F2A beneficiary (child of a lawful permanent resident) turns 21 or ages out and is not eligible to benefit under the Child Status Protection Act (CSPA), for example, the petition will automatically convert to F2B and the priority date is retained.
Similarly, when the lawful permanent resident parent naturalizes, the beneficiary in an F2B petition (unmarried sons and daughters of LPRs) automatically converts to F1 (unmarried sons and daughters of U.S. citizens). The beneficiary, however, may opt out of the F1 conversion if the F1 category is more backlogged than the F2B. As long as the petition was properly filed, the priority date is retained even if the petition has not yet been approved at the time of the parent’s naturalization.
If the beneficiary in an F2B petition marries after the parent’s naturalization, the petition will automatically convert to F3 (married sons and daughters of U.S. citizens). However, if the F2B beneficiary marries before the naturalization of the parent, the beneficiary is no longer eligible for the immigration benefit and the priority date is lost.
If the marriage of an F3 beneficiary (married sons and daughters of U.S. citizens) terminates, the petition will automatically convert to F1.
Meanwhile, the petition for an F2A beneficiary (spouses and minor children of lawful permanent residents) is automatically converted to immediate relative petition upon naturalization of the lawful permanent resident. Immediate relatives are not subject to the numerical limitations and an immigrant visa number is immediately available to them.
Also, under immigration law, parents who are the principal beneficiaries of a family based preference petition can include their unmarried children under 21 as derivative beneficiaries. The automatic conversion and priority date retention under the CSPA, however, only apply to derivative beneficiaries of F2A petitions.