All About Priority Dates:All About Priority Dates:Conversion, RetentionConversion, Retention

and Revocation

2012 CLINIC Convening Austin, Texas

PresentersPresenters

• Charles Wheeler Director Training andCharles Wheeler, Director, Training and Legal Support, CLINIC

• Kristina Karpinski Training and Legal• Kristina Karpinski, Training and Legal Support Attorney, CLINIC

2

WE WILL COVER• ABCs of priority dates

Cross chargeability• Cross-chargeability• Conversion of visa categories and priority

d idate retention• Opt out of automatic conversion• Petition revocation• Visa retrogressionVisa retrogression

3

PRIORITY DATE BASICS• Priority date = date on which the family-based

petition is properly filed with USCIS, labor cert filed ith DOLwith DOL

• Properly filed defined in 8 CFR § 204.1(d)P f i i t bj t t t i l• Preference immigrant subject to quotas: numerical limits per preference category per fiscal year

• For preference category immigrants priority dateFor preference category immigrants, priority date determines the beneficiary’s “place in line”

• Not an issue with immediate relatives• Need current priority date to file adjustment or for

NVC to schedule consular interview

4

ASSESSING VISA AVAILABILITY• Visa Bulletin is published each month by

Department of StateDepartment of State• Lists cut-off date for each family and

l t b d f temployment-based preference category• A priority date is current if is filed before the

date listed on the Visa Bulletin for that category

5

VISA QUOTA SYSTEM• 226,000 family-based visas available

annuallyannually• 140,000 employment-based visas• Each country allotted 7%, or 15,820

family-based visas• Not every country uses maximum• Visa Bulletin assigns priority dates basedVisa Bulletin assigns priority dates based

on past usage and current demand

6

MAY 2012 VISA BULLETIN

All

Family Chargeability Areas Except Those Listed

CHINA-mainland born INDIA MEXICO PHILIPPINES

1st 01MAY05 01MAY05 01MAY05 15MAY93 01JUL97

2A 15NOV09 15NOV09 15NOV09 15OCT09 15NOV09

2B 22FEB04 22FEB04 22FEB04 01DEC92 08DEC01

3rd 08MAR02 08MAR02 08MAR02 15JAN93 22JUL92

4th 01DEC00 22NOV00 01DEC00 01JUN96 22JAN89

7

CROSS-CHARGEABILITY

On February 10, 2002, Miguel filed a 3rd

preference petition for his married sonpreference petition for his married son, Raul, who was born in Mexico. Raul’s wife Maria was born in Guatemalawife, Maria, was born in Guatemala. Since the 3rd preference is now current for Guatemala but is backlogged anotherGuatemala, but is backlogged another nine years for Mexico, Raul can choose to use his wife’s country of birth anduse his wife s country of birth and immigrate with her.

8

CROSS-CHARGEABILITY• General rule: visa is charged to

beneficiary’s country of birthbeneficiary s country of birth• Cross-chargeability where:

– child charged to foreign state of either parent where accompanying or following to join

b h d f– spouse may be charged to state of accompanying spouse

9

AUTOMATIC CONVERSION OF VISA CATEGORIESVISA CATEGORIES

• 8 CFR § 204.2(i) provides for automatic conversion when:conversion when:

– child of USC marries (IR→F-3)/d ht f USC i (F 1 F 3)– son/daughter of USC marries (F-1→F-3)

– child/son/daughter of USC divorces (F-3→IR, F 3 F 1)F-3 → F-1)

– petitioner naturalizes, child under 21(F 2A IR)(F-2A→IR)

– petitioner naturalizes, child over 21(F-2B→F-1)• No separate petition required 10

OPT OUT FOR F-2Bs?

On December 1, 2001, Dalisay, an LPR, filed an I-130 for her son, Bayani, who is a national of the Philippines. The F-2B category became current in March of this year but Dalisay naturalized atin March of this year, but Dalisay naturalized at the end of last year. The F-1 category is backlogged almost four more years Can Bayanibacklogged almost four more years. Can Bayani opt out of the automatic conversion to F-1 and remain in the F-2B category?

11

OPT OUT FOR F-2Bs

• F-2B beneficiary may opt out of conversion to F 1 when petitionerconversion to F-1 when petitioner naturalizesO l l t f Fili i• Only relevant now for Filipinos

• Why opt out? F-1 backlogged to July 1, 1997 while F-2B only until December 8, 2001

• Send letter to USCIS requesting opt out

12

OPT OUT FOR F-2As?Jose, an LPR from Mexico, filed an I-130 for his daughter, Yolanda. At the time, shefor his daughter, Yolanda. At the time, she was 17 years old. The I-130 was pending for four and a half years before it was yapproved. Yolanda is now 23, but according to her adjusted age, she is only 19 d i till i th F 2A t H19 and is still in the F-2A category. Her visa is now current, but Jose naturalized last month Can Yolanda opt out oflast month. Can Yolanda opt out of conversion to the first preference category and stay in the F-2A?and stay in the F 2A?

13

NO OPT OUT FOR F-2As

• F-2A who is over 21 (but under 21 using CSPA) may not opt out of conversion to FCSPA) may not opt out of conversion to F-1 when petitioner naturalizesZ M li 25 I&N 606 (BIA 2011)• Zamora-Molina, 25 I&N 606 (BIA 2011)

• F-1 backlogged farther than F-2A• For Mexico, backlogged additional 16

yearsy• Do not naturalize if child would be affected

14

OPT OUT FOR IRs?

Fernando, an LPR, filed an I-130 for his 18 year old daughter Lupe on March 118-year-old daughter, Lupe, on March 1, 2009. On December 10, 2011, Lupe gave birth to a son Enrique On January 1birth to a son, Enrique. On January 1, 2012, the F-2A visa became current. Lupe is only 20 years old On JanuaryLupe is only 20 years old. On January 15, 2012, Fernando was sworn in as a US citizen converting Lupe to immediatecitizen converting Lupe to immediate relative. Can Lupe elect to stay in the F-2A and immigrate with Enrique?2A and immigrate with Enrique?

15

OPT OUT FOR IRs• LPR petitioner files petition for child under

21 in F-2A category21 in F 2A category• Child is unmarried but has derivative child

LPR petitioner nat rali es• LPR petitioner naturalizes• If child converts to immediate relative,

cannot immigrate with derivative child• DOS may allow child to opt out and stay in

F-2A (CDJ allows opt out)• No evidence that USCIS following thisg

16

RETAIN PRIORITY DATE?

Vanessa is the beneficiary of an F-2B petition filed by her LPR mother While thepetition filed by her LPR mother. While the petition is pending, Vanessa marries Ludo, but then divorces him a year later Thebut then divorces him a year later. The priority date is now current. Can Vanessa now immigrate?now immigrate? If her mom files a new petition, can the

i it d t b t i d f th fi tpriority date be retained from the first petition?

17

RETENTION OF PRIORITY DATES

• 8 CFR § 204.2(h)(2) states general rule:If titi fili f• If same petitioner filing for same beneficiary in same visa category and first

titi d t i i it d t fpetition approved, retain priority date for second one

• Treated as reaffirmation or reinstatement• Only if first petition not terminated or y p

revoked

18

PRIORITY DATES AND PETITION REVOCATIONREVOCATION

• 8 CFR § 205.1 provides for automatic revocation if– withdrawal of the petitionwithdrawal of the petition– loss of petitioner’s LPR status– death of petitioner or self-petitioner– death of the beneficiary– termination of marriage in spousal petitions (not VAWA)– marriage of child/son/daughter in F-2A or F-2B category

• Note: Relief for widows of USCs, other surviving l ti d 204(l) d h it irelatives under 204(l), and humanitarian

reinstatement

19

PETITION TERMINATION

• INA § 203(g) termination if fail w/in one year:attend consular interview– attend consular interview

– respond to notices from NVC (e.g., fee bill)overcome basis for refusal under 221(g)– overcome basis for refusal under 221(g)

• Agency must give notice to petitioner• Can be reinstated if respond within additional

one-year period if circumstances beyond control of applicant

20

RETAIN PRIORITY DATE? • LPR dad filed petition for 18-year-old son in 2009.

Last year son married Son now plans to divorceLast year, son married. Son now plans to divorce. Will new I-130 retain original priority date?

• In 2008 LPR Nick filed petition for spouse LorenaIn 2008, LPR Nick filed petition for spouse Lorena. They divorced in 2010 and then remarry. When Nick files a new petition for Lorena, can the 2008 priority date be transferred?

• In 1993, LPR Sarah filed a petition for her adult daughter Cynthia. The priority date is almost current, but Sarah was deported last year. Can she immigrate when the priority date is current?immigrate when the priority date is current?

21

DERIVATIVE BENEFICIARIES AND PRIORITY DATESPRIORITY DATES

• Spouse and unmarried child under 21 of the principal beneficiary in preferencethe principal beneficiary in preference categoriesA d d f t t• Accorded same preference status

• Status determined on date principal immigrates

• May or may not have been named on I-130y y

22

DERIVATIVESAND PRIORITY DATESAND PRIORITY DATES

Helena, an LPR, filed an F-2A petition for h h b d P l li ti th i hildher husband Paul, listing their children Lola and Gaby as derivatives. Before the

i it d t i t H l d P lpriority date is current, Helena and Paul get divorced. Does Helena need to file

titi f L l d G b ? Ifnew petitions for Lola and Gaby? If so, can she transfer the priority date from the

titi h fil d f P l?petition she filed for Paul?

23

DERIVATIVES AND PRIORITY DATESAND PRIORITY DATES

Victoria is the derivative beneficiary of an F-2A titi fil d b h LPR th2A petition filed by her LPR mother on behalf of her spouse. Before the priority d t i t Vi t i i d thdate is current, Victoria marries and then divorces. Now that the priority date is

t i Vi t i i till d 21current, assuming Victoria is still under 21, can she immigrate as a derivative?

24

RETENTION FOR DERIVATIVE IF PETITIONER NATURALIZESPETITIONER NATURALIZES

In April 2009, Nguyen, an LPR, filed an I-130 for his wife with his 18-year-old son Tomfor his wife, with his 18-year-old son, Tom, named as a derivative. Two years later, Nguyen naturalized Nguyen then filed aNguyen naturalized. Nguyen then filed a separate I-130 for Tom as an immediate relative Before immigrating Tom marriedrelative. Before immigrating, Tom married his Vietnamese girlfriend. He converted to F-3 but can he retain the original April 2009F-3 but can he retain the original April 2009 priority date?

25

RETENTION FOR DERIVATIVE IF PETITIONER NATURALIZESPETITIONER NATURALIZES

• 8 CFR § 204.2(i)(3)• Automatic conversion from F-2A to IR, F-2B

to F-1• Derivative loses status when petitioner

naturalizes; petitioner must file new I-130; p• If conversion from F-2A to IR upon

naturalization, retain priority datenaturalization, retain priority date• May be relevant if child marries before

immigrating as IRimmigrating as IR26

RETENTION IF F-2A DERIVATIVE AGES OUTDERIVATIVE AGES OUT

Enrique, an LPR, filed an I-130 for his wife with their daughter Louisa namedwife with their daughter, Louisa, named as a derivative in 2008. When the F-2A category became current Louisa was 24category became current, Louisa was 24 and had aged out. If Enrique files a separate I 130 for Louisa can he retainseparate I-130 for Louisa, can he retain the original priority date for her?

27

RETENTION IF F-2A DERIVATIVE AGES OUTDERIVATIVE AGES OUT

• 8 CFR § 204.2(a)(4)If derivative child in F 2A ages out (using• If derivative child in F-2A ages out (using CSPA age) prior to the principal beneficiary immigrating LPR petitioner must fileimmigrating, LPR petitioner must file separate I-130 petition for son/daughter in F 2B categoryF-2B category

• Son/daughter retains original priority date

28

RETENTION WHEN OTHERDERIVATIVES AGE OUTDERIVATIVES AGE OUT

Carla is the 25-year-old daughter of Marie, who just immigrated through an F-4 petitionwho just immigrated through an F-4 petition filed by Marie’s USC sister in 2000. The priority date became current in Novemberpriority date became current in November 2011, but Carla had aged-out, even using her CSPA adjusted age Marie is now anher CSPA adjusted age. Marie is now an LPR and is about to submit an I-130 for Carla What priority date will Carla have inCarla. What priority date will Carla have in this F-2B petition?

29

RETENTION IF OTHERDERIVATIVES AGE OUTDERIVATIVES AGE OUT

• INA § 203(h)(3): when derivatives age out, “the alien’s petition shall automatically bethe alien s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority datethe alien shall retain the original priority date issued upon receipt of the original petition” USCS i t t ti l li t F 2A• USCS interpretation → only applies to F-2As who age out, not to others

• Opposing view → applies to all derivatives

30

MATTER OF WANG 25 I&N Dec 28 (BIA 2009)25 I&N Dec 28 (BIA 2009)

• Retention of priority date limited to same titi fili f b fi i ipetitioner filing for same beneficiary in

same preference category• Only applies to F-2A derivatives• No automatic conversion for other

derivatives• No Congressional intent to expandNo Congressional intent to expand

31

BACK TO CARLA

Carla is the 25-year-old daughter of Marie who just immigrated through an FMarie, who just immigrated through an F-4 petition filed by Marie’s USC sister in 2000 The priority date became current in2000. The priority date became current in November 2011, but Carla had aged-out, even using her CSPA adjusted age Marieeven using her CSPA adjusted age. Marie is now an LPR and filed an I-130 for Carla Carla will not be able to retain theCarla. Carla will not be able to retain the original priority date for this F-2B petition.

32

SPLIT IN FEDERAL CIRCUITS• Li v. Renaud, 654 F.3d 376 (2nd Cir. 2011)

St t t bi d f t• Statute unambiguous, no deference to USCIS

• “Converted to the appropriate category” means to an available category, not to another family-sponsored category based on a petition filed by a different petitioner

• No appropriate category when derivative (other than F-2A) ages out( ) g

33

SPLIT IN FEDERAL CIRCUITS• Cuellar de Osorio v Mayorkas, 656 F.3d 954

(9th Cir 2011)(9th Cir. 2011)• Statute is ambiguous as applied to F-3, F-4• “convert” means same petitioner, beneficiary• “automatic” means no new petition filedp• Legislative history inconclusive• Found BIA decision in Wang permissible• Found BIA decision in Wang permissible

readingN ti id l ti• Nationwide class action

34

SPLIT IN FEDERAL CIRCUITS• Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011)• Found statutory terms unambiguous• Found statutory terms unambiguous• Gave no deference to agency interpretation• Held that 203(h)(3) applied to all derivatives,

not just F-2As• Derivative converts to F-2B upon LPR parent

filing new I-130, retains original priority date• Affects cases in Louisiana, Mississippi,

Texas

35

RETROGRESSION• Visa Bulletin does not progress steadily• Visa Bulletin may “retrogress” (i e cut off dates• Visa Bulletin may retrogress (i.e., cut-off dates

can move back in time)• Significant retrogression in most family based visa• Significant retrogression in most family-based visa

categories in the January 2011 Visa Bulletin and more in February 2011more in February 2011

• Still not caught up with December 2010

36

VISA RETROGRESSION AND CONSULAR PROCESSINGCONSULAR PROCESSING

• Even if a petition has been approved, immigrant visa cannot be issued unlessimmigrant visa cannot be issued unless priority date is current

• File may be at National Visa Center (NVC)• File may be at National Visa Center (NVC) or at a consular postIf the file is at the NVC:• If the file is at the NVC: ◦ Continue to respond to all requests◦ Pay fee bills (will not lose money paid)◦ Pay fee bills (will not lose money paid)◦ Notify NVC of any changes in address◦ nvcinquiry@state gov or◦ nvcinquiry@state.gov or

nvcattorney@state.gov37

RETROGRESSION AND ADJUSTMENT OF STATUSADJUSTMENT OF STATUS

• Adjustment application filed, but priority date no longer current:date no longer current:– USCIS will “pre-adjudicate” the application

Case forwarded to NBC– Case forwarded to NBC– Cannot be approved until priority date is current

Applicant can apply for EAD and advance– Applicant can apply for EAD and advance parole• Caution: Exiting the U S may trigger unlawful• Caution: Exiting the U.S. may trigger unlawful

presence bar for some individuals

38

VISA RETROGRESSION AND CSPAAND CSPA

• Must be under 21 using CSPA age on date priority date current and satisfy 1 year filing requirementdate current and satisfy 1-year filing requirement

• If visa retrogression during one-year window, get second chance to satisfy one year rulesecond chance to satisfy one-year rule

• When visa becomes current for second time, calculate CSPA age againcalculate CSPA age again

• New one-year window opens up at that time• Can also satisfy by filing DS 230 or I 824 so not• Can also satisfy by filing DS-230 or I-824, so not

affected if consular processing

39