RETENTION OF PRIORITY DATE UPON CONVERSION OF FAMILY PETITION
By: Reuben Seguritan
Filing family-based petitions for relatives is the way to reunite family members and bring them to the United States. However, due to the decades-long wait for the visa numbers to be available, some life changes might have occurred which could affect the family-based petition.
Some family-based petitions automatically convert to other preference categories and this could mean either a longer or a shorter wait time. However, other life changes can completely remove the intended beneficiary from the immigration benefit.
Family-based preference petitions are as follows: F1 (unmarried sons and daughters of US citizens), F2A (spouses and minor children of lawful permanent residents or LPR), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of US citizens) and F4 (brothers and sisters of US citizens).
The life change that occurs either to the petitioner or the intended beneficiary can shorten or lengthen the wait time for the visa number. The Department of State sets the cut-off date which is published in the monthly Visa Bulletin. If the petition’s priority date is before the cut-off date stated, then a visa number is immediately available. However, if the priority date is on or after the cut-off date, then the visa number is not yet available and the petitioner and intended beneficiary must wait until the priority date becomes current.
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 an immediate relative petition upon the 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.