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Recapturing Priority Dates And All That

by Charles Wheeler, Esq.

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 categories.

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.

Cross Chargeability
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.