One major area of confusion and frustration concerns priority dates for family based cases. The assignment of a priority date is extremely important in estimating when a preference based family case is ready to be adjudicated by USCIS or the Department of State. Ordinarily, it is pretty straightforward: one looks at the priority date assigned to one's case, and then consults the latest Visa Bulletin to determine how far off one's case is. Things get confusing, however, when a beneficiary's or petitioner's status changes. For example, what happens if a beneficiary gets married? Or what happens if the petitioner becomes a United States Citizen? Depending on the circumstances, a priority date may be preserved; in other cases, a priority date may be lost. Fortunately, in many situations, an automatic conversion occurs. For instance, if a child of a USC marries, the case is automatically converted from an F-1 preference based case to an F-3 case, which is for married children of US Citizens. The priority date remains unchanged, resulting in the married adult child being able to immigrate with his/her spouse and children under the age of 21 without having to have an entirely new I-130 filed. Another common scenario where a conversion also occurs is when a petitioner becomes a citizen after having filed for an adult child over 21 as a green card holder. After naturalization, the beneficiary's classification is automatically changed from F2B to F1.
Contrast this with the following scenario: a permanent resident files for an unmarried child over the age of 21. This would place the beneficiary squarely within the F2B category. However, while the case is pending, the beneficiary marries. Subsequent to the marriage, the petitioner naturalizes and becomes a United States Citizen. Will the beneficiary be able to convert from F2B to F3 with the same priority date? Unfortunately, no. In this case, where the marriage precedes the naturalization, the beneficiary essentially took him/herself out of the F2B category because, unfortunately, there is no category for married children of lawful permanent residents. On the other hand, if the petitioner naturalized before the beneficiary married, then the priority date would have been preserved and the case converted from an F2B case to an F3.
This just goes to illustrate how fact and case sensitive these types of matters can be. Given the stakes, it is critical to ascertain the consequences of certain status changes before the changes actually occur. It can mean the difference between keeping a case intact and practically canceling the case and having to start all over again. For preference based cases, this can potentially mean additional waiting times of more than 10 years; what's worse, there may be no applicable category in which to file as a result of the status change. For more information on automatic conversions, preservation of priority dates, and upgrades, please contact our office.
The foregoing is general information or opinion only. It is not intended to be a substitute for legal advice nor does it create an attorney-client relationship. If you need legal advice, please consult with an attorney.