Can the daughter of a U.S. citizen get her green card faster after her divorce?

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Question:

I became a U.S. citizen a few years ago, and filed a visa petition (Form I-130) for my daughter in Malaysia, who is was married at the time. Her marriage has since fallen apart, however, and the divorce was just finalized. Will her “unmarried” status help her get a green card any faster? If so, what do we do to make this happen?

Answer:

The married child of a U.S. citizen is in the third-preference category of the visa preference system. As you have discovered, annual limits on the number of visas given out in this category have created a waiting list.

It takes, on average, about ten years between when the I-130 visa petition is filed and when the third-preference beneficiary can move forward with applying for an immigrant visa (the equivalent of a U.S. green card). (The wait is even longer, about 20 years, for third-preference beneficiaries from Mexico and the Philippines, due to especially high demand from those countries.)

Upon a divorce (assuming it’s a good faith divorce and not being done for immigration purposes), the child may shift to another category. You didn’t mention how old your daughter is, but there are two possibilities:

  • -- If under 21, the child of a U.S. citizen who gets divorced becomes an “immediate relative,” and able to proceed with the immigration process right away.
  • -- If over 21, the child of a U.S. citizen who gets divorced becomes a “first preference relative,” and again subject to annual limits on visas, with the average wait from most countries around seven years – but approximately 20 years for beneficiaries from Mexico, and 12 years for those from the Philippines. The years she has already waited will count, as she will be allowed to keep her original “priority date.”

The bottom line is that you will probably gain a few years by advising the immigration authorities of your daughter’s divorce. (But that’s not guaranteed to remain true – check the State Department’s Visa Bulletin or consult an immigration attorney for a closer look.)

Now, for the question of how to bring this to the attention of the right people in the U.S. government. You do not, fortunately, need to file a new I-130 visa petition. Instead, depending on how far along in the process you are, you’ll want write a letter to either the USCIS service center, the National Visa Center, or the U.S. consulate in your daughter’s country (whichever one is currently handling her file). Explain that your daughter has converted from third preference to first preference or immediate-relative status. You will also want to enclose a copy of the divorce certificate or similar proof that the marriage was ended. If this seems difficult, an immigration lawyer can help you.

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