Change of Circumstances and Immigrant Visa Petitions

The current U.S. immigration law system for family members of U.S. residents and Citizens is a preference system. Unless your family member is considered an immediate relative of a U.S. Citizen their visa applications will be subject to annual quotas and the preference system.

The preference system gives priority to visa applications based on the nature of the relationship between the petitioner (U.S. Citizen or lawful permanent resident) and the beneficiary. For example, the 1st preference is for unmarried sons and daughters of U.S. Citizens.

However, since the preference system is based on relationships between people, marital status, and the immigration status of the petitioner any changes in these areas can change ones position in the preference system. It is important for those who have pending I-130s or plan to file I-130s to understand how changes may affect the status of their petition.

There are 3 factors that can change ones status in the preference based immigration system:

• Immigration status;
• Marital status;
• Age

How changes in immigration status can effect immigration preference

Because immediate relatives of U.S. Citizens are not subject to the preference system, a lawful permanent resident's naturalization can have the most profound positive affect on a pending I-130 immigrant visa application. Assume for example that an LPR files an I-130 immigrant visa petition for his or her child. The child is a second preference with a current average waiting period of 5 years. However, if the LPR becomes a citizen while the I-130 is still pending the beneficiary now becomes an immediate relative of a U.S. Citizen and there is no waiting period for a visa. In these cases, the I-130 petitioner must notify the National Visa Center of his or her naturalization and provide a copy of the certificate of naturalization.

How changes in marital status can affect an immigrant visa petition

Several of the preference categories are dependent on marital status. For example the first preference category is for unmarried sons and daughters of U.S. citizens so changes in the beneficiaries marital status can affect the petition.

For example, assume you are a U.S. Citizen and file a petition for your daughter who is, at the time you file the petition, unmarried. However, several years after you file the petition your daughter is married. Your daughter's marriage just moved her from a 1st preference with a current waiting period of about 7 years to a 3rd preference which has a current waiting period of about 9 years. In this case, the daughter's marital status had a negative effect on the processing time of her immigrant visa petition.

Conversely, the divorce of a married son or daughter can move the beneficiary from the 3rd preference category to the 1st preference category.

How changes in age can affect preference immigrant visa petitions

The 2A preference category is for spouses or unmarried children of lawful permanent residents. Children are defined as being under 21 years of age. Thus, an LPR may file an I-130 for his or her child who at the time is under 21. However, because of the lengthy waiting period the child may reach the age of 21 while the case is pending. The Child Status Protection Act effective August 6, 2002 provides some relief to beneficiaries who are affected by age changes.