Recapturing Priority Dates
Under certain circumstances, a child with a pending adjustment of status application to a family preference category who would otherwise “age out” may have his or her immigrant visa petition converted to an appropriate preference category...
Introduction to Recapturing Priority Dates for Family-Based Immigrant Visa PetitionsUnder 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. 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." 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. 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.
Advice for Recapturing Priority DatesBefore seeking to recapture a priority date, it is important to ascertain whether the child beneficiary will not be covered by the Child Status Protection Act (CSPA). The CSPA allows children in certain applications to continue to be counted as children after they would have otherwise aged out. If a child is covered by the CSPA, a second petition will not be necessary. For children who are not covered by the CSPA, the sponsors and beneficiaries should consult with an experienced immigration attorney for guidance. While the rules for recapturing priority dates are generally clear, the process is complicated and necessitates the proper filing of the second petition by the same sponsor who filed the first petition. An experienced immigration attorney will be able to guide the sponsor and beneficiary through the process and help ensure that the beneficiary maintains his or her priority date by properly filing a new petition to convert to the appropriate new preference category.