Requesting Recaptured Priority Date on Behalf of a 2A Child Turning 21

How to ask that USCIS give a child who turned 21 the same priority date he or she had when included in an immigrating parent's I-130.

If you are a U.S. permanent resident who filed an I-130 petition to start the green-card application process for your spouse and your spouse's children when they were under 21, but the children turn 21 before your spouse is able to get the visa or green card, the children have a potential problem. With your spouse still waiting for an immigrant visa or green card, your children who turn 21 could instantly lose the ability to get their visa or green card as "derivative" children of the immigrating parent in category "F2A."

They haven't necessarily lost visa eligibility altogether, however. There are two issues to look at:

  1. Could the child be legally considered to still be under the age of 21 under the Child Status Protection Act (CSPA)?
  2. If CSPA doesn't help, can you continue on in visa category F2B and reduce the waiting time with a request to keep the existing priority date?

We'll discuss both possibilities in this article.

How CSPA Protects Some Derivative Child Visa Beneficiaries Who Turn 21

Because of long USCIS processing times, the law creates a cushion for derivative children who turn 21 before receiving an immigrant visa or green card. For immigration purposes, they are allowed to subtract from their biological age the amount of time their I-130 awaited USCIS approval. For details, see How the CSPA Helps Family-Based Preference Relatives and Derivative Beneficiaries.

This unfortunately doesn't help every child who turns 21 before final approval, however.

Asking USCIS to Recapture Over-21 Child's Original Priority Date

The unmarried son or daughter (age 21 or over) of a U.S. lawful permanent resident (green card holder) is still eligible for a green card; but in category "F2B," which tends to have a longer wait than category F2A (which is only for spouses and their derivative children who are unmarried and not yet 21). (For details, also see When Children Can Immigrate to the U.S. With Their Parents, as "Derivatives.")

In the past, petitioners had to deal with the fact that their child who recently turned 21 was no longer included in the immigrating parent's visa-petition approval, and file a new I-130 petition. But fortunately, USCIS no longer requires this.

Because you filed the original I-130 petition that the son or daughter was hoping to immigrate through (the one for your spouse), you can ask USCIS not to put your son or daughter at the bottom of the F2B waiting list, but to grant the same Priority Date that your spouse (and your son or daughter) had after their initial I-130 approval.

(A Priority Date literally shows when USCIS received the person's I-130 petition, and becomes like a number showing the person's place in line for a visa.) This way, your son or daughter will get credit for all the time spent waiting before turning 21.

This is called "recapturing" a Priority Date. You will need to write a letter to the USCIS office handling your petition to ask for a recapture. Include a copy of the original I-130 (if you have it) and the INS or USCIS approval notice showing your spouse's old Priority Date.

Approval of recaptured dates is supposed to be automatic. Unfortunately, the USCIS Service Centers aren't used to this procedure and might pay no attention to your request—even if you write the most compelling letter and include complete documentation. You might get an approval notice showing a new Priority Date rather than your family's old one. Your only recourse in such a situation would be to write many letters trying to get USCIS to correct the date (or to hire a lawyer).

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