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August 24, 2009: Priority Dates and Changing the Petitioner in an I-130

Priority Dates and Changing the Petitioner in an I-130

My brother submitted an I-130 (petition for an alien relative) for me in 2001 and it has been approved since 2005 but now my daughter is 22 years old and a U.S. citizen and I would like to know if I can change the petitioner from my brother to my daughter.
— Anonymous

The I-130 petition that your United States citizen brother filed on your behalf in 2001 placed you in the family based fourth preference category. According to the September 2009 visa bulletin, visa numbers are available for fourth preference I-130 petitions with priority dates before February 22, 1999 (i.e. February 21, 1999 and earlier). As you may already know, you may not apply to adjust your status to lawful permanent resident until a visa number is available. This is so even though the I-130 petition was already approved. It is impossible to change the priority date. You have to wait in line until your priority date becomes current. It is impossible to predict how long it will take for the visa numbers to move from February 22, 1999 to your priority date in 2001. Additionally, depending on whether that I-130 was filed prior to April 30, 2001, there may be potential issues regarding your eligibility to adjust your status in the United States.

Depending on when it was filed, if you are presently in the United States and out of status, you may or may not be grandfathered under INA section 245(i). If you are in the United States but not grandfathered, then you will not be eligible to adjust your status when a visa number becomes available. As for your United States citizen daughter, she can file a brand new I-130 petition on your behalf. It is not possible to “change” a petitioner from your brother to your daughter. Your daughter will have to file her own petition.

You would be classified as her “immediate relative.” You will be able to file an I-485 application to adjust your status to lawful permanent resident at the same time she files the I-130 petition. As you can see, there is a major difference between your brother’s petition and your daughter’s petition. Your brother’s I-130 petition categorized you as a “preference immigrant.” Your daughter’s petition will categorize you as an “immediate relative.” Unlike preference immigrants, “immediate relative” immigrants do not have to wait for a visa to become available.

It may be wise for you to contact an experienced immigration attorney to explain to you all of your options and to prepare your case for presentation to the USCIS.

Michael Shane and Evan Shane, Immigration Attorneys

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