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WHO CAN KEEP THEIR PRIORITY DATE?
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I was originally petitioned by my father in the F-2A category
(unmarried child under 21 of immigrant parent). While waiting
for my visa, I turned 21, or "aged out". My father then became
a U.S. citizen, and I later got married. Is my petition still
valid, or will my father need to file a new petition for me in
the F-3 category (married child of U.S. citizen)?
Very truly yours,
K.R.
Dear K.R.:
Some petitions automatically convert to other family categories,
but retain their original priority date, and a new petition is
not required. Family petitions can convert to other categories
based on:
1. Naturalization of the Petitioner; and/or
2. Change in age or marital status of the Beneficiary.
Below are the family categories, and the various events which
could result in the petition being "converted" to another category,
but enabling the Beneficiary to retain the original priority date:
Immediate Relative (Spouse, Parent, Child under 21 of U.S. citizen):
1. Child turning 21 converts from immediate relative petition
to F-1 (single, adult child of U.S. citizen).
2. Marriage of child converts petition to F-3 (married child of
U.S. citizen).
F-1 (Single, adult child (over 21) of U.S. citizen):
1. Marriage of Beneficiary converts F-1 petition to F-3 (married
child of U.S. citizen).
F-2A (Spouse and minor child of green card holder):
1. Divorce terminates F-2A spousal petition. Petition does not
convert, and priority date is not retained.
2. Child turning 21 converts F-2A petition to F-2B (adult single
child of immigrant).
3. Note: If the minor child was included in the parent's petition
as a "derivative beneficiary", a new petition on behalf of the
adult child would need to be filed, but the original priority
date of the F-2A petition could be retained.
4. Naturalization of petitioner converts the petition to immediate
relative (spouse or minor child of U.S. citizen).
5. Note: If a child was a derivative under the original F-2A petition,
a new, separate petition would have to be filed for the child
by the petitioner upon naturalization, because "derivative beneficiaries"
are not allowed for immediate relative petitions.
F-2B (Adult single son or daughter of green card holder):
1. Marriage of child voids the petition, and the priority date
is not retained.
2. Naturalization of petitioner converts F-2B petition to F-1
(single son or daughter of U.S. citizen);
3. Note: If a person is from the Philippines, it takes LONGER
for a single son or daughter of a citizen (F-1) to get a green
card than it does for a single son or daughter of a green card
holder (F-2B). Therefore, if you are petitioned in F-2B, the child
should not marry, and the petitioner should not naturalize.
F-3 (Married child of U.S. citizen):
1. Termination of child's marriage (i.e. through death of spouse,
divorce, annulment, etc.) converts the case to F-1 (single, adult
child of U.S. citizen), or to Immediate Relative (if the child
is still under 21 at the time of termination of marriage).
F-4 (Brother or sister of U.S. citizen):
1. Age and marital status of beneficiary does not affect or convert
the petition.
If a petition "converts" to another family classification, the
original priority date is retained. However, the Beneficiary is
now subject to the waiting time (or the priority dates) in their
new classification. For example, if a child is petitioned in the
F-2B category (single adult child of green card holder), and the
parent naturalizes, the petition automatically converts to F-1
(single adult child of U.S. citizen). While the original priority
date is retained, the child is now subject to the priority date
for F-1, and not F-2B, even though the petition was originally
filed as F-2B.
In your particular case, there would be no need to file a new
petition. Although you were originally petitioned in the F-2A
category, once you turned 21, the petition automatically converted
to F-2B. When your parent naturalized, the petition again converted,
this time to F-1 (adult single child of U.S. citizen). When you
got married, the petition again converted to F-3 (married child
of U.S. citizen). During each of these "conversions", the petition
remained "alive", and, consequently, you were able to retain the
original priority date. (Note: If a person got married while their
parent was still an immigrant, the petition would be void, and
the priority date would not be retained. This is because green
card holders can never have a married child under petition. A
parent's subsequent naturalization would not revive the F-2B petition.
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