Things can happen to families while the beneficiary of a visa petition is waiting for their priority date to become current. For example, spouses can divorce or die, children may turn 21, children may marry or divorce, or an LPR petitioner may become a citizen.

When someone’s family status change results in the principal beneficiary qualifying for a new
visa category, the visa petition is automatically converted into the new visa category. If the
initial visa petition was in a preference category, the priority date remains unchanged. This is
commonly referred to as “retention” of the priority date. If the initial petition was an immediate
relative petition, then the date that petition was filed becomes the priority date in the new
preference visa category.

This may result in the beneficiary having a much longer wait in order
to immigrate based on the new preference category, like in the case of a child who gets married and becomes an adult son or daughter. However, in certain circumstances the wait
could get shorter, such as when an LPR petitioner parent naturalizes and their under 21-year-old child goes from being in a preference category to an immediate relative.

When a New Petition May Be Required to Recapture a Priority Date

Based on the language of the DHS regulations, as well as dicta in the Supreme Court decision in Cuellar de Osorio, there is a reasonable argument that derivative beneficiary children of LPRs who naturalize, automatically convert to immediate relative beneficiaries, without a new petition being filed by their newly naturalized parent. It is clear that the BIA in Matter of Wang overruled one regulation which required a new petition for aged out derivatives moving from the F2A to the F2B category.23Dicta in Cuellar de Osorio also noted that “automatic conversion[s]” never involved new petitioners, and “entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.”

Exceptions to the Revocation of Visa Petitions

Widow/er of U.S. Citizen

An I-130 visa petition will automatically convert to a widow/er self-petition (I-360) in the event of a US citizen petitioner’s death. A widow/er may also file a Form I-360 self–petition even if no I-130 was ever filed by the U.S. citizen deceased spouse. To qualify, the widow/er must meet the following criteria:

• Must file the self-petition within two years of the U.S. citizen spouse’s death (unless an I–130 spouse petition is already on file),

• Must prove that the marriage was a good-faith marriage,

• There was no divorce or legal separation at the time of the U.S. citizen spouse’s death.

The widow/er will be treated as an immediate relative. However, unlike other immediate relative petitions, widow/er petitions may include as derivative beneficiaries any children of the widow/er who were under 21 when the original petition (I-130 or I-360) was filed. Those who qualify for this relief are not subject to the affidavit of support requirement to overcome the public charge ground of inadmissibility

INA § 204(I)

INA § 204(l) provides relief to several categories of immigrants where the petitioner or principal beneficiary has died and is not limited to cases where the petitioner was a U.S. citizen. It is also not limited to the beneficiaries of family visa petitions. It includes, for example, qualifying derivative beneficiaries of I-140 employment-based petitions, asylum applications and refugee/ asylee derivative petitions, and T or U visa petition derivative beneficiaries.

It applies to the beneficiaries of family-based visa petitions where either the petitioner has died, or the principal beneficiary has died, and the petition is still pending or approved. These are the criteria to qualify under INA § 204(l):

• At least one of the remaining beneficiaries must have resided in the U.S. at the time of the qualifying relative’s death, and must continue to reside in the U.S.
• The beneficiaries must also be admissible.
• The beneficiaries must find a substitute sponsor to file an affidavit of support on their behalf unless they are exempt from this requirement.
• The petition can be denied in the discretion of DHS if granting it would not be in the public interest.

Humanitarian Reinstatement

Humanitarian reinstatement is a completely discretionary remedy for reinstating a petition where a petitioner has died. It applies only to previously approved petitions where the petitioner has died. Derivative beneficiaries are not eligible for this relief when a principal beneficiary has died.

To initiate humanitarian reinstatement, the beneficiary must:

• Send a letter to the USCIS office that approved the petition (there are no forms for making this request).
• Have a substitute sponsor (unless they qualify for one of the exemptions)

Impact on Derivatives

Some derivative beneficiaries lose out when the principal ages out, marries or divorces. Unless a derivative beneficiary can convert to another preference category when they age out, marry, or divorce, they will lose the priority date of the original petition. The only exception is where the CSPA protects an aged-out beneficiary. The petition itself remains valid as to the principal beneficiary and derivatives who have not lost their status.

Automatic Revocation of Visa Petitions

Certain circumstances can result in the automatic revocation of a visa petition, including some changes in family status. In such cases, the priority date is lost, though in some limited circumstances where the visa petition can be reinstated or other remedies may exist.

Opt-Out Provision

When an F2B beneficiary’s LPR parent naturalizes, that beneficiary automatically converts to a first preference immigrant. However, under the CSPA, the beneficiary may opt out of becoming a first preference immigrant and remain in F2B status if the waiting period for first preference exceeds the waiting period for F2B status. Unlike the adjusted age provision of the CSPA, there is no deadline for making the choice between first preference and F2B status.

When a New Visa Petition Can Retain/Recapture the Priority Date of a Previously Filed Visa Petition

Sometimes a visa petition gets misplaced by USCIS and a new one must be filed, or other circumstances occur that result in the filing of a new visa petition. The rule governing when a priority date can be kept is that the original petition must have been approved, and you must have the same petitioner, the same beneficiary, and the same visa category.50 This phenomenon has sometimes been referred to as “recapturing” the priority date of the original petition, as opposed to “retention” of the priority date, though, as noted above, the two terms are used interchangeably and basically mean the same thing.

If the petitioner and beneficiary have proof that the original visa petition was approved, including proof of the priority date, then the new visa petition will have the same priority date as the old one. The new visa petition is considered a reaffirmation or reinstatement of the original petition. It is also possible that USCIS will accept a duplicate copy, without filing fee, of the lost petition. This latter practice has proven acceptable in the past, on occasion

Accompanying and Following to Join

Accompanying and following to join are concepts that apply to the timing of the admission of derivative beneficiaries compared to when the principal beneficiary is admitted to the US as an immigrant. Derivatives who qualify under these rules will have both the same priority date and the same preference category as the principal beneficiary. Otherwise, these rules have no bearing on the concept of retention/recapture of priority dates.

Both accompanying and following to join derivatives of a visa petition may not enter the U.S. as permanent residents before the principal beneficiary. And such derivatives will lose their ability to follow to join, if the principal beneficiary naturalizes before the derivatives enter the U.S. with their immigrant visas, or before they adjust status within the United States.

Accompanying

“Accompanying” means the derivative spouse or child of a principal beneficiary enters the U.S. as an LPR either with the principal beneficiary or within six months of the principal’s entry or appearance at a U.S. consulate for chargeability purposes.

Following to Join

After six months, a derivative spouse or child of a principal beneficiary who has been admitted to the U.S. as an LPR is not considered to be accompanying the principal. Instead, the derivative spouse or child is considered to be “following to join.”69As long as the spouse was acquired before the principal’s admission as an immigrant, they may enter any time after the principal’s admission.70 A child born subsequent to the principal’s admission, is also eligible to follow to join if the marriage between the principal beneficiary parent and the derivative spouse parent existed before the principal’s admission as an LPR.