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Priority Dates in Family-Based Immigration Law
This is a brief overview of the family-based immigration and priority dates issues which a prospective immigrant faces. As you read on, please keep in mind that this article is only a brief overview of a very technical area of the law and should only be used as a reference to point you toward further learning and understanding.
First we need to know what is meant by a "priority date". A priority date is a prospective immigrant's place in line to receive his or her visa. It is the date when an immigrant petition, or in case of an employment-based petition, a labor certification is filed. These seemingly simple concepts cause a great deal of confusion among United States citizens (USC) and lawful permanent residents (LPR) who are trying to bring family members to the United States. Sometimes, they cause considerable personal suffering. Let me give you an example.
A short time ago a newly sworn United States citizen of Brazilian origin came to my office for consultation. It turned out that six years ago, when he became a lawful permanent resident, he had filed an immigrant visa petition for his daughter who lived in his native Brazil. This friendly man was overjoyed and told me that he was now a proud grandfather of a lovely granddaughter. The prospect of his daughter, her husband and child coming to the United States greatly excited him. He wanted to know how he could expedite the immigration process to bring his daughter and her family to the United States since he was now a United States citizen.
Although it showed plainly on his face, in truth, I can only imagine the deep disappointment this man felt when I had to tell him that his daughter's second preference petition, which he had filed years earlier, was now revoked and that her priority date was lost since she was now married. Unfortunately, this scenario is all too common due to the long processing times which exist under current immigration laws.
Before discussing how priority dates work under US immigration laws, it will be helpful for readers to understand family-based preference categories.
There are five family-based immigration categories that allow USCs and LPRs to sponsor their family members:
1. Immediate-Family Members of US Citizen
Spouses, parents and minor children under twenty-one years of age can immigrate to the United States immediately. They don't have to wait in line for their priority dates to become current. This means, for example, that a USC can apply for an immigration visa for his father or mother in Australia without waiting for a visa number to become available.
2. First Preference
This category includes unmarried children of USCs who are twenty-one years or older. This allows a USC to file an immigrant visa petition for his children who are over twenty-one years of age and are unmarried. There is approximately a two-year waiting period under this category, following the approval of a visa petition, before consular processing or an adjustment of status application could be filed by the prospective immigrant. The waiting period for the prospective immigrants from Mexico and the Philippines under this first preference is even longer due to large influx of immigrants from these countries.
3. Second Preference
This category is divided into two parts. Part1, includes spouses and unmarried minor children of LPRs who are under twenty-one years of age. Part 2 includes children of LPRs who are unmarried and are over twenty-one years old. The waiting period before a visa number could become available under this category is much longer as compared to the first preference. It could take up to seven years before a spouse or a child of an LPR is eligible to immigrate to the United States under this preference category.
4. Third Preference
This category allows married children of USCs to immigrate to the United States. Spouses and unmarried children of the prospective immigrant who are under twenty-one years of age can also accompany or join the prospective immigrant once a visa number becomes available.
5. Fourth Preference
Brothers and sisters of USCs can immigrate to the United States under this category. The waiting period for prospective immigrants under fourth preference is almost thirteen years. For citizens of the Philippines, the waiting period for receiving an immigrant visa number under this preference category is more than twenty years.
Priorty Date Is Retained when There Is a Change in Immigrant Petition
The general rule is that a priority date is established on the day an immigrant visa petition is filed. This means that there is no need to file a new immigrant petition when there is a change in preference category. For example, a USC whose daughter turns twenty-one during the pendency of her visa petition is automatically converted to first preference. Similarly, an unmarried son or daughter of an USC who marries during the pendency of his or her first preference petition, automatically converts to third preference category. In both these examples, the initial priority date is retained despite automatic conversion to lower preference categories.
Sometimes changes in the sponsoring petitioner's immigration status or divorce of a prospective immigrant can upgrade the preference category. For example, an LPR's sponsoring of his spouse, who becomes a US citizen during the pendency of the immigrant's petition, is eligible for immediate relative category. Similarly, a married daughter of a US citizen who divorces her husband is entitled to the benefits of the first preference category. An illustration should make this point clear. Suppose a USC father sponsors his married son in Bosnia-Heregovia in March 1997 under third preference. If in January 2001, while the immigrant visa petition is pending, the son's wife dies or there is a divorce, the immigrating son becomes eligible for a higher visa preference category while retaining his initial priority date of March 1997.
Priority Date is Lost when the Immigrant Petition is Revoked
A visa petition is revoked automatically in cases where a sponsoring petitioner dies or a prospective immigrant, under the second preference category, marries during the pendency of the immigrant petition. For example, a son of an LPR in a second preference category who marries prior to adjusting his status or receiving a green card, is no longer eligible for an immigrant visa. In this case, the immigrant petition is revoked and the priority date is lost forever. This means that the initial priority date cannot subsequently be recaptured even if the same sponsoring LPR becomes a US citizen and files under third preference.
The same rules apply when a sponsoring USC or LPR dies while the immigrant visa petition is pending. However, in some cases, the Attorney General can still grant an immigrant visa to intending immigrant on humanitarian grounds. You should consult with an immigration attorney for more details regarding this very limited area of relief.
I hope this brief overview of the family-based immigration and priority date issues sheds some light on how this area of the law works. There are still many issues that exceed the scope of this article. USCs and LPRs who have or wish to sponsor their relatives from abroad must get acquainted with the basic requirements of family-based immigration laws to be able to avoid any unnecessary delay associated with immigrant visa processing. Hopefully this article will help you move toward that basic understanding.
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