F2B case with complication

[Family 3,988]

29 minutes ago, limegreenbowler said:

I think in those cases you'd either see an annulment or some other legal finding that the marriage was never valid to begin with, and I imagine that government lawyers looked at the case and said this was an exception that met the law. I think the distinction between law and regulation in this case is a little silly--the law is written in broad strokes and cannot account for every eventuality, and in our system it's up to executive branch agencies to write regulations about how to implement the law. In this particular case, given that there is no provision for married sons or daughters of LPRs to have a category of their own (whereas there are for adult children of citizens), a clear reading of the law indicates there was no intent by Congress for them to be able to immigrate, and so the petition in cancelled. Any applicant would be able to litigate this, but given that they're going against more than 50 years of the law as implemented, I don't think there's any chance of success.

If I recall correctly, the mechanism prior to 2009. Matter of Wang , had been to file new I-130 ( post divorce ) BUT stake claim to old priority date …that was effectively curtailed . 

 

https://myattorneyusa.com/recapturing-priority-dates-for-family-sponsored-immigrant-visa-applications

Initially, there was a question of how broadly INA § 203(h)(3) would be applied, especially with regard to petition beneficiaries in the second preference category [minor children of LPRs and adult sons and daughters of LPRs]. Ultimately, the U.S. Supreme Court settled the matter for now in Scialabba v. Cuellar de Osorio, No. 12-930, 573 U.S. __, 2014 WL 2560467 [PDF version], by upholding the Board of Immigration Appeals (BIA) decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009) [PDF version]. Matter of Wang interpreted INA § 203(h)(3) narrowly, holding that the priority date may only be retained if the second preference visa petition is filed by the same petitioner.⁴ That is, where the petition “can be seamlessly converted from one family preference category to another without the need for a new sponsor
 

Furthermore, since petition beneficiaries under the F2B category may not marry without invalidating the F2B petition, being able to recapture the priority date may not simply be a matter of convenience, but a matter of when the petition beneficiary may be able to marry and start a family.