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Change of Preference
The priority date is essential for determining when the beneficiary of an immigrant petition will be able to join their family member(s) in the U.S., or if already in the USA be able to apply for Green Card issuance.  It is only when the priority date becomes current that the beneficiary will be able to apply for adjustment of status (i.e. obtain permanent residence) or obtain an Immigrant Visa at a US Consulate or Embassy abroad.  Since some preference categories suffer from long backlogs, changes may occur such as the petitioner naturalizing, or the beneficiary aging out, or marrying. When this occurs, certain petitions will automatically convert to a different preference category. Where concern may arise is regarding whether the original priority will be retained. In certain situations, the original priority date may be retained and the beneficiary will not lose his/her place in the visa queue, and there is also the situation where it is beneficial to preserve the original preference category.  If you are a petitioner of an I-130 petition, and there has been a change in your immigration status or a change in the beneficiary’s status, contact us to determine how this change will affect your immigrant petition, and whether or not your priority date or preference category may be retained.

The general rule is that a priority date is established on the day an immigrant visa petition is filed. This means that there is no need to file a new immigrant petition when there is a change in preference category. For example, a USC whose daughter turns twenty-one during the pendency of her visa petition is automatically converted to first preference.

Similarly, an unmarried son or daughter of an USC who marries during the pendency of his or her first preference petition, automatically converts to third preference category. In both these examples, the initial priority date is retained despite automatic conversion to lower preference categories. Sometimes changes in the sponsoring petitioner's immigration status or divorce of a prospective immigrant can upgrade the preference category. For example, an LPR's sponsoring of his spouse, who becomes a US citizen during the pendency of the immigrant's petition, is eligible for immediate relative category. Similarly, a married daughter of a US citizen who divorces her husband is entitled to the benefits of the first preference category. An illustration should make this  point clear. Suppose a USC father sponsors his married son in Italy in March 2001 under third preference. If in January 2004 while the immigrant visa petition is pending, the son's wife dies or there is a divorce, the immigrating son becomes eligible for a higher visa preference category while retaining his initial priority date of
March 2001.

Priority Date is Lost when the Immigrant Petition is Revoked

A visa petition is revoked automatically in cases where a sponsoring petitioner dies or a prospective immigrant, under the second preference category, marries during the pendency of the immigrant petition. For example, a son of an LPR in a second preference category who marries prior to adjusting his status or receiving a green card, is no longer eligible

for an immigrant visa. In this case, the immigrant petition is revoked and the priority date is lost forever. This means that the initial priority date cannot subsequently be recaptured even if the same sponsoring LPR becomes a US citizen and files under third preference. The same rules apply when a sponsoring USC or LPR dies while the immigrant visa petition is pending. However, in some cases, the Attorney General can still grant an immigrant visa to intending immigrant on humanitarian grounds. You should consult with us for more details regarding this very limited area of relief.

Important Note - When you see that your Priority Date is current, don’t wait for the US Immigration Service / National Visa Center to call you – instead, be proactive and contact us to follow up with both the National Visa Center and US Immigration Service.

Common Question and Answers:

Q1. I previously filed a petition for my wife and young children while I was a lawful permanent resident – I have since become a US citizen.  What do I need to do to speed up the immigration process for my wife/children?

You need to upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your U.S. citizenship to the National Visa Center (NVC). You should send:
  • A copy of the biodata page of your U.S. passport; or
  • A copy of your certificate of naturalization
Important Notice: If you upgrade a family second preference (F2) petition for your spouse and you did not file separate petitions for your minor children when you were a LPR, you must do so now. A child is not included in an immediate relative (IR) petition. (This is different from the family second preference (F2) petition, which includes minor children in their parent's F2 petition.)

Q2. I am a US Citizen and previously filed for I-130 for my two sons and daughter (all were over 21 years of age and unmarried).  Two of the I-130s have been approved, and the National Visa Center is asking for remittance of fees for visa processing. During the pendency of the I-130s, my sons get married and have children, and my daughter gets married.  How do I get the NVC to change their preference category to 3rd preference so that I can retain their priority dates?

Just send NVC a letter with proof of the new marital status. Filing date should stay the same as it was.

Q3. While I was a lawful permanent resident, I filed and obtained approval for my adult daughter in the 2B category.  I recently have become a US Citizen, as a result, it seems that my daughter would be eligible to proceed further with the Green Card processing (as the priority date for the 1st preference category is now current). What do I need to do?

As part of the adjustment of status application, submit a copy of the I-130 approval notice along with evidence of your US citizenship.

Q4. Is my understanding correct that for a beneficiary who was a minor (18 yrs old) when his LPR father filed an I-130 for him in 1998, that he retains his preference as 2A child of an LPR under 21 years old? I-130 was previously approved. Priority date is current as of 2002. This means that beneficiary can now adjust as permanent resident using Family based 2A category correct despite the fact that he is now over 21, right? In addition, if the beneficiary married when he was 22 years old, it does not affect or change his 2a preference category, and his spouse can also adjust as his derivative based on his approved 2A pref I-130?

No - marriage causes the 2A or 2B petition to be revoked if the Petitioner is still only an LPR at the time of beneficiary's marriage.  If the Petitioner naturalized BEFORE the 2A or 2B beneficiary got married, then the 2A or 2B petition would convert to either IR (if the child is unmarried and under 21 at the time of Petitioner's naturalization) or, if it is a 2B petition and the Petitioner naturalizes BEFORE the beneficiary marries, then the 2B petition would convert to 1st Preference. If it went from 2B to 1st and THEN the beneficiary marries, the petition would convert from 1st to 3rd preference. The key is whether the beneficiary got married while the Petitioner was still an LPR.

Q5. A single individual is awaiting his interview at the US consulate based on family petition. His mother applied for him when she was LPR under 2B and now she is a citizen, therefore he is 1st category. Can he get married before his interview and add his wife to the petition under 3rd category without losing the priority date?

If he marries, he will convert to a 3rd preference, which would allow his wife to accompany him. He would retain the original PD. BUT the quota for 3rd pref is usually years behind the 1st preference, so by converting to 3rd pref, he may not be current any longer, in which case his visa will not be issued at the visa interview. You need to look at the current dates for 1st and 3rd pref for his chargability.

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