AGING OUT HYPOS

There are three scenarios in which aging out might occur:

1. Where a US citizen petitions for the admission of an alien child who turns 21 before the petition is approved. That, however, has been addressed by 201(f): the date for determining whether the son or daughter of a US citizen qualifies as a "child" (and therefore for immediate relative status) is the date of the petition. (Remember, no backlogs for immediate relatives of US citizens.)

2. Where a lawful permanent resident alien petitions for the admission of a child under 203(a)(2)(A). Here there is the possibility of "aging out" from (a)(2)(A) and being converted to (a)(2)(b) (for unmarried sons and daughter of LPRs). The disadvantage of this is that there is a longer backlog for the F2B preference.

The age out rules here are impacted by the adoption of 203(h). The critical date for determining whether someone is a child for (a)(2)(A) is the date of visa availability, not the date the petition is filed. However, the noncitizen's age can be reduced by the number of days between the filing of the petition and its approval.

A demonstration:

1/1/2020 - LPR petitions for admission of 19-year old daughter under (a)(2)(A).

1/1/2021 - petition approved by USCIS, but visa is not available because of quota backlogs.

1/1/2022 - daughter turns 21.

1/1/2024 - visas become available for the 2A preference for individuals with a 1/1/2020 priority date (the date the petition was filed).

Under this scenario, the daughter will not be entitled to the 2A visa. She is 23 years old at the date of visa availability. That age is reduced only by one year (the time after the petition was filed but before it was approved). Considered as a 22-year old, she no longer qualifies as a "child" and will be subject to the additional delays of the 2B preference, although she will retain 1/1/2000 as her priority date.

3. Where a son or daughter is seeking under 203(d) to accompany or follow to join a parent alien as a "child". Under 203(h), in this case the age of the child is determined as of the date of visa availability for the parent, so long as the child applies for the visa under 203(d) within one year of availability, reduced by the time that the parent's petition was pending. 

CONVERSION HYPOS 

Conversion occurs when a non-citizen beneficiary’s preference status changes after the filing of a petition but before a visa becomes available. In those cases, the beneficiary’s classification automatically “converts” to the now-applicable immigrant category. The priority date stays the same; in other words, the clock is not set back to zero.

An example:

On 1/1/2020, a citizen petitions for the admission of her unmarried son, born in Indonesia. The son thus qualifies for the F1 preference category (unmarried sons and daughter of citizens), with an approximate 7-year backlog (no country cap applies). The priority date is 1/1/2020 (the date on which the petition was filed).

On 6/1/2022, the son gets married. The petition thus converts to the F3 preference category (married son and daughters of citizens), with an approximate 13-year wait. However, the son gets to retain the original priority date, 1/1/2020. The priority date is not changed to 6/1/2022. This all happens automatically; no filings are involved.

If the son was married on 1/1/2020 and was thereafter divorced, his preference would convert in the other direction, from F3 to F1, shortening the wait time.

INA 201(f), 203(d), 203(h), 203(c)