9 FAM 503.3
Priority Dates
(CT:VISA-1717; 03-03-2023)
(Office of Origin: CA/VO)
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-1660; 11-30-2022)
A petition is properly filed when the completed, signed petition, including all initial evidence and the correct fee, is filed with DHS.
9 FAM 503.3-2(B) Family-Sponsored Preference Petitions
(CT:VISA-1660; 11-30-2022)
a. Petitions Filed with the 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 section, 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 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 has been filed. 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-1660; 11-30-2022)
a. First Preference: Applicants 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 an SIV 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 Before October 1, 1991, but Visa Not Issued: If an applicant had established entitlement to SIV status but had not obtained a visa before October 1, 1991, they 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 applicant submitted the application for immigrant status under prior law.
(2) Derivative SIVs Not Issued Before 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 applicant was issued the SIV. 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 principal’s 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 entrepreneur is the date the petition was properly filed with DHS. The 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-1717; 03-03-2023)
a. Spouse/Child Acquired Before Principal’s Admission:
(1) The spouse or child of a principal applicant acquired before the principal applicant’s admission to the United States or adjustment of status to that of 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 applicant if “accompanying” or “following-to-join.” See 9 FAM 102.3 and 9 FAM 502.1-1(C)(2) paragraph b.
(2) A preference applicant’s priority date is linked to the underlying petition and qualifications for that status. A derivative spouse or child’s loss of entitlement to status (through principal applicant’s demise, attaining the age of 21 years, etc.) results in the loss of a priority date.
b. Child of a Marriage Existing Before Principal’s Admission: The child of a marriage which existed before the principal applicant’s admission into the United States or adjustment of status to that of LPR has been previously acquired and is entitled to the same status and priority date as the principal applicant.
c. Spouse/Child Acquired After Principal’s Admission: A spouse or child acquired after the principal applicant’s 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 applicant’s admission into the United States, is not accorded derivative status, and thus is not entitled to the priority date of the principal applicant. The principal applicant must file a second preference petition for such spouse or child.
d. Spouse/Child Acquired After Visa Issuance but Before Principal’s 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 before the principal applicant’s admission into the United States or adjustment of status to that of LPR is entitled to derivative status and the priority date of the principal applicant, 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 applicant’s date of admission for permanent residence or adjustment of status to that of LPR is earlier than the Application Final Action Date for the numerical limitation applicable to the spouse and children, you may use that date and need not attempt to determine the principal applicant’s actual priority date. However, if the principal applicant’s 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 applicant’s 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 applicant’s 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 applicant’s date of admission is a date preceding the actual date on which DHS acted to accord the principal applicant LPR status.
(2) Commuter’s Relatives Not Eligible for Benefits: Pursuant to DHS regulations 8 CFR 211.5(c), a 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 above) provide for a derivative priority date only for the spouse and children of a principal applicant. 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) Your Role with Respect to Priority Date
(CT:VISA-1660; 11-30-2022)
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 applicant or the applicant’s representative claims that the date has been incorrectly determined, you should 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-1717; 03-03-2023)
a. Petition Filed by Same Petitioner for Same Beneficiary Under Same Preference: When a visa petition has been approved, and a new petition by the same petitioner is approved later 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 INA 203(g) or revoked pursuant to 8 CFR 205 or when an IV has been issued to the beneficiary due to 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 applicant issued an 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 applicant 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 request an AO from L/CA.
(2) After Admission to United States: An applicant cannot reuse a priority date which was used for the issuance of an IV which the applicant 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-1400; 10-26-2021)
A priority date established by an approved petition for any of the family-sponsored preference classes is valid only for 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-1400; 10-26-2021)
An applicant’s petition automatically converts and retains the original priority date when the applicant’s 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 applicant’s 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 beneficiary’s 21st birthday. No further action by DHS, the petitioner, or the beneficiary is necessary. The situation is like that of an IR-2 applicant who turns 21 before 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 beneficiary 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 parent’s 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-1717; 03-03-2023)
a. U.S. Citizen Spouse: See 9 FAM 502.1-2(C).
b. Other than U.S. Citizen Spouse: The death of a petitioner before the beneficiary’s travel to the United States results in the automatic revocation of the petition and the loss of the beneficiary’s priority date. If you believe that special humanitarian reasons exist which would warrant reinstatement of the petition, you should prepare a memorandum to DHS requesting reinstatement and forward it with the petition.
9 FAM 503.3-3(B)(5) Death of Principal Beneficiary
(CT:VISA-1400; 10-26-2021)
In the case of the death of the principal beneficiary before 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-1660; 11-30-2022)
a. Employment Preference Petition Filed by Different Petitioner or According Different Preference: A petition approved for a beneficiary under INA 203(b)(1), INA 203(b)(2), or INA 203(b)(3) accords them 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 later 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) Later 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 Beneficiary: Before 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, 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-1660; 11-30-2022)
a. Until 1976, individuals 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 as the parent, spouse, or child of a U.S. citizen or LPR.
b. A native of the Western Hemisphere who established a priority date with a consular officer before 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 LPR 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-1400; 10-26-2021)
Under section 9 of the INA Amendments of 1976 (Public Law 94-571), an individual who was registered as a Western Hemisphere immigrant with a priority date before January 1, 1977, retains the priority date and may use that priority date for any preference petition later approved in their behalf.
9 FAM 503.3-4(B) Establishing Entitlement to Western Hemisphere Priority Dates
(CT:VISA-1491; 02-25-2022)
An applicant 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 before January 1, 1977;
(2) The consular section or the Department may still have records reflecting the applicant’s pre-1977 registration as a Western Hemisphere applicant;
(3) The applicant may present proof of the principal applicant’s priority date and proof that the required relationship existed at the time; or
(4) The applicant establishes proof of the principal applicant’s priority date and evidence that they are the child of a marriage which existed before the principal applicant’s admission to the United States.
(5) State has 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-1400; 10-26-2021)
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 applicant. If the principal applicant, however, married the spouse before January 1, 1977, then the principal applicant may have acquired a priority date as the derivative beneficiary of the spouse who held the Western Hemisphere priority date.