9 FAM 503.3
Priority Dates
(CT:VISA-930; 08-22-2019)
(Office of Origin: CA/VO/L/R)
9 fam 503.3-1 statutory and
regulatory Authorities
9 FAM 503.3-1(A) Immigration
and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 203(a)-(b) (8 U.S.C. 1153(a)-(b)); INA 203(d) (8
U.S.C. 1153(d)); INA 203(e) (8 U.S.C. 1153(e)); INA 203(g) (8 U.S.C. 1153(g)).
9 FAM 503.3-1(B) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
22 CFR 42.43, 22 CFR 42.53, 22 CFR 42.54.
9 FAM 503.3-2 Determining
Priority Dates
9 FAM 503.3-2(A) Definition of
Properly Filed
(CT:VISA-1; 11-18-2015)
A petition will be considered properly filed when the
completed, signed petition, including all initial evidence and the correct fee,
is filed with the Department of Homeland Security (DHS).
9 FAM 503.3-2(B) Family-Sponsored
Preference Petitions
(CT:VISA-2; 11-18-2015)
a. Petitions Filed With the Department
of Homeland Security (DHS): The priority date of the
petition is the date on which the completed, signed petition is properly filed.
b. Petitions Filed With and Approved
by Consular Officer: If you accept and approve a family-sponsored
petition, the petition filing date is the date on which the petition is
received and date-stamped in the consular office, provided the fee has been
paid, proper evidence is provided, and the petition has been signed. (See 9 FAM 504.2-4.)
c. Petitions Received by Consular
Officer but Forwarded to the Department of Homeland Security (DHS) for Adjudication: If you accept a petition with the
required supporting documents, collect the fee, and forward the petition to a
DHS office for adjudication, the petition is considered to have been filed.
Thus, a priority date is established when the petition is received and
date-stamped in the consular section.
9 FAM 503.3-2(C) Employment-Based
Preference Petitions
(CT:VISA-518; 03-14-2018)
a. First Preference: Aliens
applying for employment-based first preference are not subject to a job offer
requirement, and therefore do not require labor certification. The priority
date accorded by an employment-based first preference petition is the date the
petition is properly filed with DHS.
b. Second and Third Preference:
The priority date accorded by an employment-based second or third preference
petition based upon an individual labor certification is the date on which the
labor certification was accepted for processing by an employment service office
in the Department of Labor. The priority date in a case which does not require
a labor certification is the date on which the petition was properly filed with
DHS. (See 9
FAM 503.3-3(C) below.)
c. Fourth Preference: The
priority date accorded by an employment-based fourth preference petition is the
date the petition was properly filed at the appropriate office of DHS or, in
the case of a special immigrant described in INA 101(a)(27)(D) (an employee or
former employee of the U.S. Government abroad), at a U.S. consular office
abroad.
(1) Special Immigrant Status
Established Prior to October 1, 1991, but Visa Not Issued: If an alien
had established entitlement to special immigrant status but had not obtained a
visa prior to October 1, 1991, the alien must file a petition with DHS (or in
the case of an SE applicant, at a consular office abroad) for classification
under INA 203(b)(4). Such petitions have as a priority date the date the alien
submitted the application for immigrant status under prior law.
(2) Derivative Special Immigrant
Visas Not Issued Prior to October 1, 1991: DHS and the Visa Office have
agreed that the spouse and/or child of a special immigrant who immigrated to
the United States may be deemed entitled to status derivatively under INA
203(b)(4). No separate petition is required. The applicant will be accorded
as a priority date the date the principal alien was issued the special
immigrant visa. If that information is not available, the priority date will
be the date the special immigrant was admitted to the United States. This
information is reflected in the principals passport and/or on the Form I-551,
Permanent Resident Card, or can be obtained from DHS.
d. Fifth Preference: The
priority date accorded by an employment-based fifth preference petition for an
alien entrepreneur is the date the petition was properly filed with DHS. It
should be noted that such date may be earlier than October 1, 1991, because DHS
permitted filing of Form I-526, Immigrant Petition by Alien Entrepreneur, for
priority date purposes (although no adjudication could take place) before the
effective date of the DHS regulations pertaining to this class.
9 FAM 503.3-2(D) Priority Date
for Derivative Spouse/Child
(CT:VISA-930; 08-22-2019)
a. Spouse/Child Acquired Prior to
Principals Admission:
(1) The spouse or child of a principal alien acquired
prior to the principal aliens admission to the United States or the aliens adjustment of status to that of Legal
Permanent Resident (LPR), if not otherwise entitled to immigrant status
and immediate issuance of a visa, is entitled to the same status and thus the
same priority date as the principal alien if accompanying or
following-to-join. (See 9 FAM 102.3
and 9
FAM 502.1-1(C)(2) paragraph b.)
(2) A preference applicants priority date is linked
to the underlying petition and qualifications for that particular status. A
derivative spouse or childs loss of entitlement to status (through principal
aliens demise, attaining the age of 21 years, etc.) results in the loss of a
priority date.
b. Child of a Marriage Existing Prior
to Principals Admission: The child of a marriage which existed prior
to the principal aliens admission into the United States or the aliens adjustment of status to that of LPR is
considered to have been previously acquired and thus is entitled to the same
status and priority date as the accompanying or following-to-join parent.
c. Spouse/Child Acquired After
Principals Admission: A spouse or child acquired after the principal
aliens admission to the United States or
adjustment of status to that of LPR, except a child of a marriage
existing at the time of the principal aliens admission into the United States,
is not accorded derivative status, and thus is not entitled to the priority date
of the principal alien. The principal alien must file a second preference
petition for such spouse or child.
d. Spouse/Child Acquired After Visa
Issuance but Prior to Principals Admission or Adjustment of Status to that of LPR: Although 22 CFR 42.53 provides that a spouse or child
acquired after visa issuance but prior to the principal aliens admission into
the United States or the aliens adjustment of
status to that of LPR is entitled to derivative status and the priority
date of the principal alien, the determination of that priority date is often
time-consuming and difficult since no record of the name of the spouse or child
would exist at post. Therefore, if the principal applicants date of admission
for permanent residence or adjustment of status
to that of LPR is earlier than the Application Final Action Date
(referred to as the cutoff date in Visa Bulletins prior to October 2015) for
the numerical limitation applicable to the spouse and children, you may use
that date and need not attempt to determine the principal applicants actual
priority date. However, if the principal applicants date of admission or adjustment of status to that of LPR is later
than the applicable Application Final Action Date, you must take the necessary
steps to determine the principal applicants priority date and use that date as
the priority date for the spouse and children. (See 9 FAM
502.1-1(C)(2).)
(1) Use of Admission Date Not
Authorized in Certain Circumstances: The use of the principal aliens
date of admission for permanent residence as the priority date for the spouse
or child is not authorized when, under special legislation or regulatory
provisions, the principal aliens date of admission is a date preceding the
actual date on which DHS acted to accord the principal alien permanent resident
status.
(2) Alien Commuters Relatives Not
Eligible for Benefits: Pursuant to DHS regulations 8 CFR 211.5(c), an
alien commuter cannot confer any immigration benefits on behalf of relatives
before taking up residence in the United States.
e. No Derivative Priority Date for
Parents: 22 CFR 42.53(c) regulations (see 9 FAM 503.3-1)
provide for a derivative priority date only for the spouse and children of a
principal alien. There is no derivative priority date provided by statute or
regulation for the parents of an intending immigrant.
f. No Derivative Priority Date for
Offspring of Derivative Child: There is no derivative priority date
provided by statute or regulation for the offspring of derivative children;
e.g., a child of an F12 or F43 teenager.
9 FAM 503.3-2(E) Consular
Officers Role With Respect to Priority Date
(CT:VISA-836; 06-03-2019)
a. If a petition is approved by DHS, the DHS
adjudicator will indicate the proper priority date in the appropriate box on
the face of the petition. You should assume that the adjudicator has
appropriately applied the DHS regulation in assigning that date.
b. If, however, the alien or the aliens representative
claims that the date has been incorrectly determined, you will send an e-mail
containing a copy of the petition and supporting documents with a full report
of the facts to the National Visa Center (NVC), at NVCPost@state.gov, for
verification and/or for forwarding to the appropriate DHS office for
reconsideration and determination of the correct priority date. Only if it is
conclusive that the date is wrong (for instance, if the priority date is later
than the approval date on which the officer is reviewing it) may you make a
change in the priority date without referral to DHS.
9 FAM 503.3-3 Retention of a
Priority Date
9 FAM 503.3-3(A) General
(CT:VISA-836; 06-03-2019)
a. Petition Filed by Same Petitioner
for Same Beneficiary Under Same Preference: When a visa petition has
been approved, and subsequently a new petition by the same petitioner is
approved for the same preference classification on behalf of the same
beneficiary, regard the latter approval as a reaffirmation or reinstatement of
the validity of the original petition. This is not the case, however, when the
original petition has been terminated pursuant to section 203(g) of the Act, or
revoked pursuant to 8 CFR 205 or when an immigrant visa has been issued to the
beneficiary as a result of the petition approval. (See 9 FAM
504.13-2(A).)
b. Priority Date Validity After Visa
Issuance:
(1) After Visa Issuance but Before
Admission to United States: An alien issued an immigrant visa (IV) who
fails to enter the United States would be entitled to the priority date
previously established by the petition. However, since the visa has expired,
the alien must apply for a new visa. If all the circumstances remain the same,
you may proceed with issuing the visa. If, however, the same circumstances do
not exist, you should refer the case to the Departments Office of Legal
Affairs, Advisory Opinions Division (CA/VO/L/A) for an advisory opinion (AO).
(See 9 FAM 304.3-1.)
(2) After Admission to United States:
An alien cannot reuse a priority date which was used for the issuance of an
immigrant visa (IV) which the alien in turn used to gain lawful admission into
the United States.
9 FAM 503.3-3(B) Family-Sponsored
Preference Petitions
9 FAM 503.3-3(B)(1) Family
Petition Valid for Purposes of That Petition Only
(CT:VISA-1; 11-18-2015)
A priority date established by an approved petition for
any of the family-sponsored preference classes is valid only for the purpose of
that petition. If the petition is revoked under INA 203(g) or 8 CFR 205, or if
a new petition is filed by a different petitioner for the same beneficiary, the
priority date of the initial petition is not transferable to the new petition.
If, however, the petition has not been revoked under INA 203(g) or 8 CFR 205,
and a new petition is filed by the same petitioner for the same beneficiary in
the same classification, DHS deems the approval of the new petition to be a
reaffirmation of the initial petition and reinstatement of the priority date of
that original petition.
9 FAM 503.3-3(B)(2) Retention
of Priority Date Despite Conversion to Another Status
(CT:VISA-1; 11-18-2015)
An applicants petition automatically converts and retains
the original priority date when the applicants status changes under certain
circumstances.
(1) When Marital Status Changes:
(a) An approved first preference petition for an
unmarried son or daughter automatically converts to third preference when the
applicant marries. The applicant retains the priority date of the original
petition, which at the time of filing accorded first preference status.
(b) If a child beneficiary of an immediate relative
petition marries, the petition automatically converts to third preference. The
applicants priority date is the filing date of the petition, which originally
accorded IR-2 status.
(c) An approved third preference petition converts to a
first preference (or IR-2 if under 21) if the applicant is widowed or
divorced. The applicant retains the priority date of the original petition,
which at the time of filing accorded third preference status.
(2) When a Child Reaches Majority:
(a) When the child beneficiary of an approved IR-2
petition turns 21 years of age, the petition automatically converts to first
preference. The priority date is the filing date of the petition, which at the
time of filing accorded IR-2 status.
(b) A child in the 2A group who reaches 21 years of age
is no longer entitled to 2A status. If such child is the beneficiary of an
approved petition, the petition automatically provides the basis for 2B status
as of the beneficiarys 21st birthday. No further action by DHS, the
petitioner, or the beneficiary is necessary. (The situation is similar to that
of an IR-2 applicant who turns 21 prior to visa issuance; that petition
automatically converts to provide first preference status.)
(c) A child accorded 2A status derivatively loses
entitlement to such status upon reaching the age of 21. Under DHS regulations,
the petitioner must file a new petition on behalf of the alien to accord 2B
status. The new petition will be accorded the priority date of the initial
petition.
(3) When the Petitioner Becomes
Naturalized:
(a) Upon the naturalization of the petitioner, the
approved second preference petition for the spouse automatically converts to
status as an immediate relative.
(b) Upon the naturalization of a petitioning parent, an
approved second preference petition for a child beneficiary automatically
converts to status as an immediate relative. A child who has second preference
status derivatively does not benefit from the parents naturalization, because
the child is not the beneficiary of an approved petition and there is no
derivative entitlement under the immediate relative provision. Such a child
loses second preference status and acquires no other until such time as a
petition naming the child as the beneficiary is filed and approved.
(c) If the son and/or daughter who is the named
beneficiary of a second preference petition is age 21 or older and the
petitioner becomes naturalized, the status accorded by the petition converts to
first preference. The applicant retains the priority date of the petition
which at the time of filing accorded second preference status.
9 FAM 503.3-3(B)(3) Priority
Date of Revoked Petition Not Retained
(CT:VISA-836; 06-03-2019)
a. The Beneficiary of a New Family
Preference Petition May Not Retain the Priority Date of a Revoked Petition If:
(1) The new petition accords a different preference
status;
(2) The new petition is filed by a different
petitioner; or
(3) The old petition was revoked under INA 203(g) or 8
CFR 205.
b. The preference priority date in such a case is the
filing date of the new petition.
9 FAM 503.3-3(B)(4) Death of
Petitioner
(CT:VISA-1; 11-18-2015)
a. U.S. Citizen Spouse: See 9 FAM
502.1-2(C).
b. Other than U.S. Citizen Spouse:
The death of a petitioner prior to the beneficiarys travel to the United
States results in the automatic revocation of the petition and the loss of the
aliens priority date. However, if you believe that special humanitarian
reasons exist which would warrant consideration by DHS of the reinstatement of
the petition, you may prepare a memorandum requesting such consideration and
forward it with the petition to DHS. (See 9 FAM
502.1-2(C).)
9 FAM 503.3-3(B)(5) Death of
Principal Beneficiary
(CT:VISA-1; 11-18-2015)
In the case of the death of the principal beneficiary
prior to admission to the United States, neither the petition nor the priority
date would remain valid for a derivative beneficiary.
9 FAM 503.3-3(C) Retention of a
Priority Date - Employment-Based Preference Petitions
(CT:VISA-300; 03-14-2017
a. Employment Preference Petition
Filed by Different Petitioner or According Different Preference: A
petition approved for an alien under INA 203(b)(1), INA 203(b)(2), or INA
203(b)(3) accords the alien the priority date of the approved petition for any
subsequently filed petition under INA 203(b)(1), INA 203(b)(2), or INA 203(b)(3).
This priority date is maintained even if the petitioner is different from the
original petitioner. A petition revoked under INA 203(g), INA 204(e), or INA 205
will not confer a priority date.
b. Subsequent Petition in
Employment-Based Classifications:
(1) Unless revoked pursuant to 8 CFR 205.2 for fraud
or misrepresentation, a priority date accorded by approval of an
employment-based first, second, or third preference petition is retained by the
beneficiary for any other first, second, or third preference petition approved
subsequently for the same beneficiary. In all cases, the beneficiary of
multiple petitions is entitled to the earliest of the filing dates of the
various petitions.
(2) Subsequent petitions need not be from the same
petitioner or for the same type of employment. However, where the applicant is
no longer proceeding to work for the first petitioner, it would be reasonable
to make inquiries to determine whether the first petition had been revoked.
(See 8 CFR 204.5(e).)
(3) A priority date established in the
employment-based first, second, or third preference category is not
transferable to employment-based fourth or fifth preference petitions or to a
family-sponsored petition.
c. Substitution of Alien Beneficiary:
Prior to July 16, 2007, an employer was permitted to substitute another
employee after a labor certification had been approved. However, Department of
Labor (DOL) regulations prohibited substitution of beneficiaries of labor
certifications effective July 16, 2007; USCIS has not accepted substitutions to
support an immigrant preference petition since that date. In the event that you
encounter an application for a beneficiary who was substituted after the labor
certification was approved by DOL but before July 16, 2007, keep in mind that
the priority date for a petition that is supported by a labor certification
substitution is the earliest date the certification was accepted for processing
by DOL.
9 FAM 503.3-4 Former Western
Hemisphere Priority Dates
(CT:VISA-1; 11-18-2015)
a. Until 1976, aliens born in independent countries of
the Western Hemisphere and the Canal Zone were identified as Western
Hemisphere immigrants upon establishment of status by obtaining a labor
certification or being exempt therefrom as the parent, spouse, or child of a
U.S. citizen or lawful permanent resident (LPR) alien.
b. A native of the Western Hemisphere who established a
priority date with a consular officer prior to January 1, 1977 and who was
found to be entitled to an exemption from the labor certification requirement
of INA 212(a)(5)(A) as the parent, spouse, or child of a U.S. citizen or lawful
permanent resident (LPR) alien will continue to be exempt from that
requirement, and will retain the priority date for so long as the relationship
upon which the exemption is based continues to exist.
9 FAM 503.3-4(A) Retention of
Western Hemisphere Priority Dates
(CT:VISA-1; 11-18-2015)
Under section 9 of the INA Amendments of 1976 (Public Law
94-571), an alien who was registered as a Western Hemisphere immigrant with a
priority date prior to January 1, 1977 retains the priority date and may use
that priority date for the purpose of any preference petition subsequently
approved in his or her behalf.
9 FAM 503.3-4(B) Establishing
Entitlement to Western Hemisphere Priority Dates
(CT:VISA-1; 11-18-2015)
An alien may establish entitlement to a Western Hemisphere
priority date in several ways:
(1) The applicant may present documents received from
a consular office indicating that the applicant was registered as a Western
Hemisphere immigrant with a priority date prior to January 1, 1977;
(2) The consular office may still have records
reflecting the applicants pre-1977 registration as a Western Hemisphere
applicant;
(3) The applicant may present proof of the principal
aliens priority date and proof that the required relationship existed at the
time; or
(4) The applicant establishes proof of the principal
aliens priority date and evidence that he or she is the child of a marriage
which existed prior to the principal aliens admission to the United States.
(5) We have traditionally promulgated regulations and
instructions regarding Western Hemisphere priority dates. Consequently, if you
decide that a Western Hemisphere priority date applies in a case, you should
make the adjustment without referral to DHS.
9 FAM 503.3-4(C) No
Cross-Chargeability for Western Hemisphere Priority Dates
(CT:VISA-1; 11-18-2015)
There is no cross-chargeability for Western Hemisphere
priority dates. Thus, a derivative spouse who is entitled to a Western
Hemisphere priority date cannot transfer entitlement to the principal
alien. If the principal alien, however, married the spouse prior to
January 1, 1977, then the principal alien may have acquired a priority date as
the derivative beneficiary of the spouse who held the Western Hemisphere
priority date.