Changing visa categories and priority dates

WHEN a petition is filed for a family member, the beneficiary (the person being petitioned) is assigned a “priority date,” which is their “place in line” for a visa.  They can apply for their immigrant visa or green card only when their priority date is current (or visa is available), which can take many, many years.

Some people mistakenly believe that the circumstances that existed at the time the petition is filed should apply throughout the entire process.  For example, if they were petitioned as single, but later got married, they should still be processed as single.  If they were under 21 when the petition was filed, but later aged out, they should still be considered a minor.  If the petitioner was alive when the petition was filed but later died, they should still be entitled to a visa without humanitarian revalidation, since the petition was filed while the petition was alive. 

This viewpoint is not correct.  It is not the circumstances that existed when the petition was filed that apply to a person’s petition or case, but instead the circumstances that exist when the visa becomes available.  If there are certain changes or developments, it could result in their petition being reclassified into a different category and either make the waiting time for a visa faster or longer. 

The following are some changes in circumstances that could affect a person’s visa category and/or priority date:

• F-1 petition (single child of U.S. citizen) converts to F-3 (married child of U.S. citizen) upon the beneficiary’s marriage, and they are subject to the F-3 priority dates.

• F-3 petition converts it to F-1 upon the termination of the beneficiary’s marriage (by divorce, annulment, death of spouse, etc.), and the beneficiary is subject to the F-1 priority dates, which are much faster.  (I have previously written articles that if a person is under an F-3 petition but their marriage is effectively “over,” because their spouse abandon them, disappeared, or there’s no more love, they may want to consider terminating the marriage rather than staying in the longer F-3 category.

• Immediate relative petition of minor child of U.S. citizen (IR) converts to F-3 if the child marries before their visa is issued.

• F-2B petition (single adult child of green card holder parent) is automatically void and terminated if the beneficiary marries before the petitioner naturalizes or visa is issued.  It does not matter that the beneficiary was “single” when the petition was filed.  If they get married before visa issuance (or before the petitioner naturalized), the petition becomes void as of their wedding day.  If the F-2B beneficiary marries after the petitioner naturalizes, the petition converts to F-3.

• Unless eligible for benefits under the Child Status Protection Act (CSPA), minor child who turns 21 years of age (ages out), results in an IR child converting to F-1 (unless he was under 21 years of age when the petition was filed) , F-2A converting to F-2B, or a derivative beneficiary falling off their parent’s petition. 

• Naturalization of the petitioner results in an F-2A petition converting to IR (if the beneficiary is still under 21 years of age), or an F-2B petition converting to F-1 (unless the beneficiary elects to remain in the F-2B category). 

I realize the laws concerning visa categories, conversion of petitions, and priority dates can be very complex and confusing.  If there have been any changes in a person’s circumstances that may affect the waiting time on their visa, they may want to consider consulting with an immigration attorney, who can evaluate their case and determine if they are in the proper visa category and/or eligible for a faster visa category.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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