Can a Divorced Child Under 21 Be the Immediate Relative of a U.S. Citizen Parent?

Only a good faith divorce can return the child of a U.S. citizen to immediate relative status.

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If you are an immediate relative of a U.S. citizen, you can immigrate to the U.S. quickly, without being slowed down by limits on the number of visas available each year. Other relatives of U.S. citizens and lawful permanent residents (LPRs) might be able to immigrate under the visa preference system. This process, however, can take many years of waiting after a visa petition is approved before a visa becomes available and the relative can immigrate. (See "Green Card Through a U.S. Family Member: Who Qualifies?" for details.)

It is therefore important to understand who exactly qualifies as an immediate relative. Children of U.S. citizens are one of the categories who are considered “immediate relatives.”

However, who qualifies as a “child” for immigration purposes depends on strict legal rules. To begin, a child must be under 21 years of age. In addition, a child must be unmarried. This means that if you are unmarried but 21 years old or older, you are not considered a child. Likewise, if you are under 21 but married, you cannot qualify as a child under immigration law.

How Divorce Affects Definition of Child for Immigration Purposes

What happens if you are under 21 and married, but you get divorced? Can you then qualify as your U.S. citizen parent’s immediate relative? The answer is yes, a divorced (or widowed) child is considered unmarried and thus qualifies as a child for immigration purposes.

However, you must be careful: You cannot get divorced just to qualify for an immigration benefit.This is considered fraud, and U.S. Citizenship and Immigration Services (USCIS) might deny your petition on this basis. Your divorce has to be in good faith, meaning based on relationship issues with your spouse. Your divorce cannot happen solely so you can qualify as an immediate relative as a child of a U.S. citizen.

When evaluating whether a divorce took place solely for immigration purposes, the government might consider whether you continue to live with your ex-spouse, share any bills with him or her, or any other evidence that might help establish the intent behind the divorce.The government might ask you to provide additional documentation to prove a real divorce, as described later in this article.

How a Parent Should File a Petition for a Divorced Child

If you qualify as an immediate relative as a child of a U.S. citizen, and your parent has not yet filed an I-130 petition on your behalf, you would simply follow the typical immigrant visa process. For more information about this, see Nolo’s article, "Filling Out and Submitting Form I-130 for a Child."

If, on the other hand, your U.S. citizen parent already filed an I-130 petition on your behalf as a married son or daughter, and you get divorced in good faith, you change from category F3 to an immediate relative (if you are still under 21). You will need to inform the National Visa Center (NVC) of this change so that it can upgrade your status to immediate relative. The sample cover letter below shows how to do so (and don’t forget to include a copy of the divorce certificate, as mentioned):

Establishing That Your Divorce Was In Good Faith

Once your I-130 petition is approved or your status has been updated to immediate relative, you would proceed with consular processing or adjustment of status.

During the process, in addition to the typical documents requested, USCIS may ask you for information about the reason for your divorce, to determine whether it happened in good faith.

Be prepared to submit documentation showing that your divorce was the result of marital discord and that your relationship to your spouse has ended. Examples of such documents might include change of your or your ex-spouse’s address/es, separately filed tax returns, bills exclusively in your name, and child custody agreement documents.

by: Caroline Donohue

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