Recapturing Priority Date of I-130

[surya2008 0]

Hi All,

I had petitioned for my wife and two sons while I was a green card holder. Later, when I became US Citizen, I filed a separate petitions for each son as they lost their derivative status. Originally, when I applied their priority date was Dec 5, 2004.

The case of my wife and the younger son (under 21) was approved and got processed at NVC. However, in case of my older son (over 21 and unmarried), his new I-130 is still pending at USCIS since April 2009. On April 15, 2009 I received Notice of Action from USCIS that they have received the petition. However, it did not have any priority date mentioned on it. It was blank.

My question is :

1. Will they automatically recapture the original priority date (Dec 5, 2004) ?

2. If they approve I-130 with new priority date, how can I request them to consider the old priority date ?

As per USCIS - California Service Center, the consular processing of his category will be due in next couple of weeks.

Please advise ASAP.

Thank you very much

Surya

[aaron2020 11,651]

Hi All,

I had petitioned for my wife and two sons while I was a green card holder. Later, when I became US Citizen, I filed a separate petitions for each son as they lost their derivative status. Originally, when I applied their priority date was Dec 5, 2004.

The case of my wife and the younger son (under 21) was approved and got processed at NVC. However, in case of my older son (over 21 and unmarried), his new I-130 is still pending at USCIS since April 2009. On April 15, 2009 I received Notice of Action from USCIS that they have received the petition. However, it did not have any priority date mentioned on it. It was blank.

My question is :

1. Will they automatically recapture the original priority date (Dec 5, 2004) ?

2. If they approve I-130 with new priority date, how can I request them to consider the old priority date ?

As per USCIS - California Service Center, the consular processing of his category will be due in next couple of weeks.

Please advise ASAP.

Thank you very much

Surya

You have been misinformed. When an LPR petitions for a spouse, derivative beneficiaries are not allowed. Your children needed their own I-130s. So your sons have no prior date.

This is what happened.

2004 I-130 filed - LPR petitioning for a spouse (F2a). (Your kids are named but not included in this petition.) You became a USC, this case gets upgraded to an Immediate Relative which means a visa is immediately available to her.

As a US citizen, you filed for the son under age 21. He is an Immediate Relative and a visa is immediately available to him.

As a US citizen, you filed for the son over age 21. He goes into the F1 family preference category where there is a 4 years waif for a visa. There is no priority date for your son to recapture. He was not a derivative beneficiary of the petition you filed for your wife. This petition for him establishes his priority date.