Immediate relatives of U.S. citizens can immigrate to the U.S. quickly, without being slowed down by limits on the number of visas available each year. Children of U.S. citizens are one of the categories considered “immediate relatives.” However, to qualify as a “child” for immigration purposes, one must be under 21 years of age and unmarried. This means that someone unmarried but 21 years old or older is not considered a child, and nor is someone under 21 but married.
Married children of U.S. citizens are not entirely out of luck. If immigrating through a parent, they will be placed in the third-preference category of the visa preference system. It takes, on average, about ten years between when the parent files an initial I-130 visa petition on behalf of the married child and when the child (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 18 years, for third-preference beneficiaries from Mexico and the Philippines, due to especially high demand from those countries.
This naturally raises the question for some children eager to immigrate to the U.S., "What if I divorce?" Assuming it's a good faith divorce and not being done for immigration purposes, this can allow the child to shift to another category. There are two possibilities, discussed below. (For the big picture regarding the preference categories qualifying family members for permanent residence, see Green Card Through a U.S. Family Member: Who Qualifies?.)
If under the age of 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. See below for more information on how to advise U.S. immigration authorities of the switch.
If over age 21, the child of a U.S. citizen who gets divorced becomes a “first preference relative,” and subject to annual limits on visas. The average wait from most countries is around six years; but approximately 22 years for beneficiaries from Mexico, and 13 years for those from the Philippines.
The years the child has already waited will count, as the child will be allowed to keep the original “priority date.”
Be sure to double check the State Department's Visa Bulletin to find out what the current average wait is, and whether that wait is actually less for first preference than third-preference relatives. Wait times can vary based on current demand, such that married children over 21 have at times actually waited LESS time than unmarried children over 21.
See How Long Is the Wait for Your Priority Date to Become Current? for help with this area of inquiry.
Be careful: Getting divorced just to qualify for an immigration benefit is considered fraud. U.S. Citizenship and Immigration Services (USCIS) or the U.S. State Department might deny the petition or green card application on this basis. The divorce has to be in good faith, meaning based on relationship issues with the spouse.
When evaluating whether a divorce took place solely for immigration purposes, the government might consider whether the child continues to live with the ex-spouse, shares finances or bills with him or her, or any other evidence that might help establish the intent behind the divorce.
The government might ask the child to provide additional documentation to prove a real divorce, such as evidence of change of address, separately filed tax returns, bills exclusively in the divorced child's name, and custody agreement documents regarding any children born of the marriage.
Now, for the question of how to bring the category change to the attention of the right people in the U.S. government. The U.S. citizen parent does not, fortunately, need to file a new I-130 visa petition.
Instead, depending on how far along in the process the application is, the parent should write a letter to either the USCIS service center, the National Visa Center, or the U.S. consulate in the child's country (whichever office is currently handling the file). Explain that, due to a bona fide divorce, the child has converted from third preference to first preference or to immediate-relative status.
Here is a sample letter, applicable to a situation where the child is under 21 and living overseas and has become an immediate relative.
[Parent's address and phone number.]
[Month, day], 20[xx]
National Visa Center
32 Rochester Avenue
Portsmouth, NH 03801-2909
RE: Petitioner: [U.S. citizen's name]
Beneficiary: [Intending immigrant's name]
Preference Category: F-3, Married Sons and Daughters of U.S. Citizens
Case Number: WAC-xx-xxx [Get this number off the I-130 approval notice. The first three letters “WAC” mean it came from the California Service Center, but if the petitioner used a different service center, this code will be different.]
I am the petitioner in the above-referenced case. My 17-year-old daughter recently divorced her husband due to marital difficulties, and they are no longer living together. A copy of her divorce certificate is enclosed. Please upgrade her status from category 2A to immediate relative, and proceed with consular processing. Thank you.
Very truly yours,
[U.S. citizen's signature]
[U.S. citizen's name]
Encl: Divorce certificate
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.