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Where the minor child of a lawful permanent resident (LPR) turns 21, he or she may be converted from Second Preference A category to the Second Preference B category.
The Child Status Protection Act (CSPA) sets guidelines for when a child of a USC or LPR who is the beneficiary of a family-sponsored immigrant visa petition may continue to be treated as a child for the purpose of staying in the same preference category and retaining the original priority date [date when the I-130, Petition for Alien Relative, was filed]. The following is a chart showing how petitions may be converted and priority dates recaptured with the various family-based preference categories: his or her petitioning parent naturalizes, the second preference category petition will be voided.
United States Citizenship and Immigration Services (USCIS) will take the child's age at the time an immigrant visa number became available to the parent and deduct the time that the petition has been pending from the child's age [INA § 203(h)(1)]. While it may be possible for individuals in this situation to pursue a different avenue toward obtaining LPR status, it is not possible for them to recapture the original priority date. Supreme Court settled the matter for now in concerned a man from the China whose LPR parent filed a petition for him in the second preference B category for adult sons and daughters of LPRs.
If the result is less than 21 years of age, the child may file for LPR status in the same preference category provided that he or she does so within one year of an immigrant visa number becoming available . § 204.2(i), explain the rules for recapturing a priority date. 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]. The beneficiary of the petition had previously had a petition filed on his behalf by his brother under the fourth preference category.
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