Immigrating Through U.S. Citizen Parent: Will Divorcing Get You a Green Card Faster?

If considering divorce, could it allow faster immigration to the U.S. via a U.S. citizen parent who is willing to serve as sponsor?

By , J.D., University of Washington School of Law

Children of U.S. citizens enjoy huge advantages when it comes to U.S. immigration. They are one of the categories considered "immediate relatives," meaning they can immigrate to the U.S. quickly, without being slowed down by limits on the number of visas available each year. 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.

This naturally raises the question for some married foreign-born people with U.S. citizen parents who are eager to immigrate to the U.S.: "How about if I get a divorce?" Assuming it's a good faith divorce and not being done for immigration purposes, this could allow the child to shift to a better visa 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?.

Can the Married Children of U.S. Citizens Immigrate at All?

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 can take, on average, around 15 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 tends to be even longer for third-preference beneficiaries from Mexico and the Philippines, due to especially high demand from those countries and per-country limits on visas.

Immigration Effect When Child of U.S. Citizen Under Age 21 Divorces

If under the age of 21, the child of a U.S. citizen who was married but gets divorced becomes an "immediate relative," and able to proceed with the immigration process right away. (We're assuming it's a real divorce, not one done fraudulently for U.S. immigration purposes.) See below for more information on how to advise U.S. immigration authorities of the switch.

Immigration Effect When Child of U.S. Citizen Over Age 21 Divorces

If over the age of 21, the child of a U.S. citizen who was married but gets divorced becomes a "first preference relative," and subject to annual limits on visas. The average wait from most countries is typically around 9 years; but often close to 25 years for beneficiaries from Mexico, and around 12 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." (See How Long Is the Wait for Your Priority Date to Become Current? for help with this area of inquiry.)

You'll want to 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.

Importance of a Bona Fide Divorce for U.S. Immigration Purposes

Be careful: Getting divorced just to qualify for a U.S. immigration benefit is considered fraud. U.S. Citizenship and Immigration Services (USCIS) or the U.S. State Department could deny the visa petition or green card application on this basis. The divorce has to be in good faith, meaning based on relationship issues with the spouse or a true desire to no longer share a life with that person.

When evaluating whether a divorce took place solely for immigration purposes, the U.S. government might consider whether the child continues to live with the ex-spouse or shares finances or bills, 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 applicant's name, and custody agreement documents regarding any children born of the marriage.

Advising U.S. Immigration Authorities of the Switch in Visa Category

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 petition.

Instead, depending on how far along in the process the application is, the parent should contact 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.

Letter Requesting Upgrade to Immediate Relative

[Parent's address and phone number.]

[Month, day], 20[xx]

[Address of recipient]

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.]

Dear Sir/Madam:

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.

Getting Legal Help

Given that this situation is unusual, you could make your life easier by hiring an experienced immigration attorney to handle your family visa case. The attorney can analyze the facts of your child's divorce and spot any potential problems, prepare the paperwork, and monitor the progress toward approval.

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