• Recapturing Priority Dates
  • November 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction to Recapturing Priority Dates for Family-Based Immigrant Visa Petitions

    Under certain circumstances, a child with a pending adjustment of status application to a family preference category who would otherwise “age out” (that is, turn 21 years of age and not be covered by a provision that prevents aging out) may have his or her immigrant visa petition converted to an appropriate preference category and recapture the priority date associated with the original petition.[1] Because of the substantial wait times in many family preference categories, the ability to recapture a priority date often makes a difference that can be measured in years for when the applicant may be able to obtain lawful permanent resident (LPR) status.

    When can a Priority Date be Recaptured?

    The Board of Immigration Appeals (BIA) has held that a priority date for a family-based immigrant visa petition may only be recaptured when a petition “can be seamlessly converted from one family preference category to another without the need for a new sponsor.”[2] This means that in order for a priority date to be recaptured, the petitioner for the converted petition must be the same as for the original petition. Based upon this precedent, the following are scenarios in which a family-based immigrant visa petition may be converted and the original priority date may be recaptured:

    PREFERENCE CATEGORY

    SCENARIO IN WHICH PETITION MAY BE CONVERTED FOR PURPOSE OF RECAPTURING PRIORITY DATE

    Immediate Relative Minor Child of USC*

    IR

    • Child turns 21 years of age [converted to first preference];
    • Child marries [converted to third preference]

    First Preference: Unmarried Adult Sons/Daughters of USCs

    F1

    • Marries [converted to third preference]

    Second Preference A: Minor Children of LPRs

    F2A

    • Turns 21 years of age [converted to Second Preference B];
    • Parent naturalizes while child is under 21 years of age [converted to Immediate Relative] [3]

    Second Preference B: Unmarried Adult Sons/Daughters of LPRs

    F2B

    • Parent naturalizes [converted to First Preference] INA § 204(k)

    Third Preference: Married Sons/Daughters of USCs

    F3

    • Divorces [converted to first preference]

    Fourth Preference: Brothers and Sisters (and their spouses and children) of Adult USCs

    F4

    • None


    *Note that the immediate relative category allows for an immigrant visa petition to be filed right away

    It is important to remember that there is no preference category for married sons and daughters of LPRs. Therefore, if a beneficiary of a petition by an LPR parent sponsor marries, he or she will forgo the ability to recapture an original priority date. Also of note is that there is no way the beneficiary of a petition in the fourth preference category may recapture an original priority date because that is the only preference category where an adult USC sibling (or their spouses or children) may act as a sponsor.

    The benefits of being able to recapture a priority date are often significant. In fact, as of the date of the writing of this article, for every preference category except for F2A, the difference would likely be at least 5 years or more. In the case of the beneficiary of a petition with an LPR parent sponsor who cannot marry without invalidating his or her petition, recapturing an original priority date could make a life-changing difference in when he or she can marry without incurring an immigration penalty.