Recapturing Priority Dates Through Automatic Conversion
Under the Child Status Protection Act (CSPA), certain child beneficiaries of immigrant visa petitions filed by a U.S. citizen or lawful permanent resident (LPR) may continue to be considered a child after “aging out.”
Automatic Conversion of Family-Sponsored Immigrant Visa Petitions and the CSPAUnder the Child Status Protection Act (CSPA), certain child beneficiaries of immigrant visa petitions filed by a U.S. citizen or lawful permanent resident (LPR) may continue to be considered a child after "aging out." CPSA protection allows the child beneficiary to stay in the same preference category and retain his or her original priority date even after aging out. For many such beneficiaries, this can mean a positive difference of several years in procuring permanent residency in the United States.
However, not all "age outs" are in fact covered by the CSPA. If the child's petition was filed on his or her behalf by a U.S. citizen parent, the child beneficiary's age freezes for CSPA purposes on the date of filing. If the child's petition is filed by an LPR parent, the child's age freezes on the date the petitioner naturalizes (if he or she does naturalize). For preference petitions, as opposed to immediate relative petitions, the CSPA allows for the subtraction of the time that the visa petition was pending from the beneficiary's age at the time an immigrant visa number becomes available. If the result is less than 21, the beneficiary may still be treated as a child for the petition.
Those who are not protected by the CSPA may have an additional recourse, however, in the form of the conversion of an immigrant visa petition. If a child beneficiary who is ineligible for CSPA protection is eligible for the automatic conversion of his or her immigrant visa petition upon "aging out" or, in other cases, marriage, he or she may move to "recapture" the original priority date.
How Conversion WorksIn order to be considered a "child" for purpose of the INA, an individual must be both under the age of 21 and unmarried. Exceeding the age of 21 or marrying will mean that the individual is no longer a "child" under the immigration laws.
Under section 203(h)(3) of the Immigration and Nationality Act (INA), if a child "ages out" and is not covered by the CSPA, his or her immigrant visa petition may be converted to the appropriate preference category. Regulations allow for automatic conversion under certain circumstances for a "child" beneficiary who marries or who was married and subsequently divorced.
To examine this process, let us look at every possible scenario for recapturing priority dates in the immediate relative and preference categories.
First, if the immediate relative minor child of a U.S. citizen turns 21 years of age before procuring permanent residency, and if he or she is not eligible for CSPA protection, the petition will be automatically converted to First Preference (unmarried adult son/daughter of U.S. citizen). If the beneficiary instead marries, the petition will be converted to the Third Preference (married son/daughter of U.S. citizen).
If the adult son or daughter beneficiary of a petition by a U.S. citizen parent (First Preference) marries, his or her petition will be converted to the Third Preference. If the married son or daughter beneficiary of a U.S. citizen parent's petition (Third Preference) divorces, his or her petition will be converted to the first preference.
If the Second Preference A minor child of an LPR turns 21 years of age before procuring permanent residency, the petition will be converted to Second Preference B (unmarried adult daughter of LPR). If the parent of such a beneficiary naturalizes before the beneficiary turns 21, the petition will be converted to an Immediate Relative petition. If the parent petitioner for the beneficiary of Second Preference B petition naturalizes, the petition will be converted to First Preference.
Limitations on Automatic Conversion and Recapturing Priority DatesThere are two important limitations on automatic conversion and recapturing priority dates.
The first is that there is no family-sponsored category for the married child of an LPR. This means that if the beneficiary of a Second Preference (A or B) petition marries, he or she will be ineligible for the automatic conversion of his or her petition because there is no family-sponsored category covering the married children of LPRs. For this reason, an individual who is the beneficiary of a pending petition filed by an LPR parent should consult with an experienced immigration attorney for a full case evaluation before entering into a marriage.
Second, a petition may only be automatically converted if the converted petition could be filed by the same petitioner. This rule was established by the Board of Immigration Appeals (BIA) in the Matter of Wang, 25 I&N Dec. 28 (BIA 2009), and upheld by the Supreme Court in Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191. For this reason, automatic conversion involving the fourth preference category, for the brother/sister (and their spouse or children) of a U.S. citizen is impossible.
General Summation of the RuleIn general, the beneficiary of a petition filed by a U.S. citizen or LPR parent is eligible to "recapture a priority date" if both the petitioner and the beneficiary are the same. If a different petitioner would be required, or if the underlying petition was terminated or revoked, the individual would be ineligible to recapture his or her priority date.
ConclusionIt is important to consult with an experienced immigration attorney throughout the immigrant visa petitioning process. An experienced immigration attorney will be able to help the petitioner and beneficiary understand how different events may affect an immigrant visa petition and CSPA protection or the ability to recapture a priority date. With regard to recapturing priority dates, an experienced immigration attorney can assist a petitioner and beneficiary throughout the process and ensure that each step is done correctly. If an LPR child beneficiary is considering marriage, an experienced immigration attorney can evaluate the situation and explain when the beneficiary may be able to procure LPR status through the pending petition filed by his or her LPR parent, and what the process for acquiring status through his or her USC or LPR spouse would be.