Recapturing Priority Dates And All That
As we all know, a lot can happen between the time the petitioner files an
alien relative petition (Form I-130) and the beneficiary adjusts status or
immigrates. For example, the beneficiary might marry, divorce, turn 21, or die.
The petitioner in turn might divorce, naturalize, lose immigrant status, or die.
There might be after-acquired children to consider. Similar events could
happen to in the lives of the derivative beneficiaries – the spouses and
unmarried children under the age of 21 of the principal beneficiary in the preference
If a new I-130 needs to be filed, when can the beneficiary retain the
original priority date? When you can go back and use an earlier priority date for
applicants from the Western Hemisphere whose family members filed an application
years ago? What rule applies if the principal beneficiary is from one
chargeability area but the derivative is from another? This article will attempt to
answer those questions while briefly summarizing the law in this area.
Automatic Conversion of Preference Category
Let's first review what
happens when one of the events mentioned above occurs, and let's start with the
beneficiary's getting married. If the beneficiary is an immediate relative,
marrying will move him/her to the third preference category. If the beneficiary is
already over 21 and started out in the first preference category, then he or
she also moves into the third preference. In both situations, there is no
need to file a new I-130; simply notify the service center, the National Visa
Canter, or the consulate of the automatic conversion to third preference. As
just an aside, if the beneficiary is from Mexico, the first preference category
is currently backlogged further than the third preference, so there is a double
advantage in marrying – the boyfriend/girlfriend becomes a derivative spouse
and immigrates with the primary beneficiary, who in turns immigrates or
adjusts faster than if single. But this principle doesn't apply if the beneficiary
is in the second preference. The child/son/daughter of a lawful permanent
resident alien (LPR) cannot marry without automatically revoking the I-130
petition. If a second preference category (2A or 2B) beneficiary marries before
immigrating or adjusting status, the I-130 petition is terminated.
Divorce tends to work the opposite way as marriage
The third preference
beneficiary moves into the immediate relative category (if under 21) or the first
preference (if over 21). Again, no need to file a new I-130. But if the
second preference beneficiary divorces, he or she cannot regain the status of a
2A or 2B preference holder, since the I-130 was revoked. The LPR petitioner
must file a new I-130 and cannot retain the earlier priority date. If the
beneficiary obtains an annulment, however, that might serve to reinstate the second
preference status. If the petitioner is the one to divorce after filing an
I-130 for a spouse, the I-130 is automatically revoked. If the petitioner had
filed an I-130 for a stepchild based on that marriage, in most cases the
divorce severs the relationship and the I-130 is revoked. But those stepchildren
who are able to establish an ongoing relationship with the stepparent may still
be able to proceed with their petition. Divorce between the principal
beneficiary and the derivative spouse in the third or fourth preference category
terminates the derivative status.
The Child Status Protection Act (CSPA) has solved the age-out problem for
many beneficiaries, or at least those whose I-130 was filed on or after August 6,
2002 or who turned 21 on or after that date. But for those who cannot take
advantage of the CSPA, turning 21 means moving from immediate relative to first
preference, or from second preference 2A to 2B. No need to file a new I-130.
Derivatives in the second preference category lose their derivative status
when they turn 21. They move from 2A to 2B, but need a separate I-130 filed in
their behalf. Fortunately, they are able to retain the original priority
date. 8 CFR § 204.2(a)(4). Derivatives in other categories who age out,
however, lose their status, assuming they are not protected by the CSPA. These sons
and daughters have to start all over again after their parent becomes an LPR.
The LPR parent then files a new I-130 in their behalf, but they do not retain
the original priority date.
When the LPR petitioner naturalizes, the beneficiary moves from the 2A
category to immediate relative, or from the 2B category to the first preference.
For most beneficiaries, the first preference is preferable to the 2B; the CSPA
attempts to neutralize any negative effect for Filipinos, since for that group
the first preference is backlogged further than 2B. Beneficiaries with
children, however, will no longer be able to count them as derivatives if they move
into the immediate relative category when the petitioner naturalizes.
Derivatives in the second preference 2A category are most affected, since as
immediate relatives they will be required to have a separate I-130 petition filed on
their behalf. When the newly naturalized U.S. citizen petitioner files this
separate I-130 petition for the unmarried child, the beneficiary retains the
original priority date. This is usually irrelevant because, as an immediate
relative, the beneficiary is not subject to any annual quotas and the CSPA freezes
the beneficiary's age. But should the beneficiary marry before obtaining LPR
status, that earlier priority date might prove helpful.
Death of the petitioner automatically revokes the I-130, but there is
possible relief for widows of U.S. citizens who have been married for at least two
years and who file an I-360 petition within two years of the citizen's death.
There is also possible relief for other beneficiaries if the petitioner died
after the I-130 was approved. They may file to reinstate the revoked I-130
based on humanitarian factors. For more information on this option, see the July
2002 issue of the newsletter. Death of the principal beneficiary will require
the petitioner to file new I-130s for any derivatives, assuming there is a
qualifying parent-child relationship. They should, however, be able to retain
the original priority date. Death of the spouse/parent usually terminates the
stepparent-stepchild petition, except in those cases where the parties
establish an ongoing relationship.
Recapturing Priority Dates
The basic principle is that you can recapture an
earlier priority date if it is the same petitioner filing for the same
beneficiary (including derivative beneficiaries) in the same preference category and
the prior I-130 was not terminated or revoked. 8 CFR § 204.2(h). The two
most common situations both involve derivatives: (1) the derivative in the 2A
category turns 21, requiring the petitioner to file a separate I-130 in the 2B
category; and (2) the LPR petitioner naturalizes, requiring him or her to file
a separate I-130 for the formerly 2A derivatives. In both situations, when
you file the second I-130, state in a cover letter that you are requesting the
original priority date, cite the regulatory authority, and attach proof of
filing the original I-130.
Pre-1977 Western Hemisphere Priority Dates
When Congress changed the law at
the end of 1976 that established our current family-based preference
categories for Western Hemisphere immigrants (North America, Central America, South
America, and adjacent islands), it allowed pending applicants – called
registrants – to use their old, unused priority dates. It also allowed any derivatives
in existence on the date of original filing (registering) to use their unused
priority dates for later applications. Derivatives include the spouses and
unmarried children under 21 on the date of original filing, as well as children
born later from a marriage that existed on that date. This means that
children born after January 1, 1977 can still qualify as derivatives if their
parents were married and had filed (registered) prior to that date. The savings
clause in the 1976 legislation allows the beneficiaries and derivatives to use
the original date of filing (registering) for later I-130 applications. Once
established, the priority date is retained by the derivatives, even if they
subsequently marry or turn 21. The priority date can be used in conjunction with
any properly approved visa petition filed on behalf of the alien.
More clients than you might think can take advantage of this savings clause
for Western Hemisphere priority date applicants. For example, earlier this
year staff at the Catholic Charities in Milwaukee adjusted the status of three
children over age 21 of LPR parents. The I-130s had been filed and approved
quite recently. But instead of using those priority dates, they used the 1971
date on which the children's grandmother had filed an application (registration)
to immigrate her daughter (the children's mother). At that time, the mother
was married to the children's father, although the children weren't born until
years later. In this case, the children saved the correspondence from the
U.S. consulate in Cd. Juarez verifying that they were Western Hemisphere
priority date beneficiaries and were eligible to use the 1971 priority date. Had the
Catholic Charities staff been unaware of this procedure, their clients would
need to have waited – and stayed unmarried – for several more years.
If the principal and derivative beneficiaries were born
in different countries, it may be possible to apply cross chargeability
principles. Visas are usually chargeable to the country of the beneficiary's place
of birth. But one basic tenet of family-based immigration is maintaining the
family intact. If one family member were being charged to a country that is
over-subscribed, while the other family members in the same preference
category were charged to countries that are current, this would result in separation
and undue hardship. To remedy this potential problem, the law allows in some
situations for the family to elect whichever foreign state is more beneficial.
The law seems to limit application of this cross chargeability, however, to
the third and fourth preference categories and to situations where it is
necessary to prevent the separation of the spouses or separation of the children
and parents. For example, if a U.S. citizen is petitioning for his married
Mexican son, the son and his Guatemalan spouse can elect to have their visas
charged to Guatemala, since the third preference is backlogged further for
Mexicans. Similarly, if a U.S. citizen is immigrating his Japanese brother, the
brother's Philippine wife would elect to be charged to her husband's country of
birth. Their child, who was born in India, could elect to be charged to either
parent's country, and in this example would elect the father's.
About The Author
Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC).
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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