OPINION | US VISA-IMMIGRATION CORNER- Terminating a failed marriage could ‘expedite’ your petition

Dear Atty. Gurfinkel:

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I was petitioned by my US citizen parent in 2008 as a married child (category F-3). However, I am now separated from my spouse, and have had no contact with him for years.

I want to join my family in the US as soon as possible.

Is there anything I can do to expedite my petition?

Very truly yours,

JZ

Dear JZ:

As long as you are still married, you cannot expedite your petition. However, if a marriage is truly over and there is no chance of reconciling or getting back together, you should consider terminating the marriage (through annulment if you are in the Philippines, or divorce if you’re in the US). Upon termination of your marriage, you would be considered single or unmarried, and the petition would “automatically convert” from a married child of a US citizen (F-3) to an unmarried child of a US citizen (F-1). Then the petition could be processed based on the faster priority dates for F-1 petitions. There would be no need for your parents to file a new petition, as you would keep the original priority date of the F-3 petition.

The National Visa Center (NVC) is currently processing immigrant visas for married children from the Philippines filed in 2002. They are processing immigrant visas for single children of US citizens filed in 2012.

Therefore, if a person has an F-3 priority date earlier than 2012 and they lawfully terminate their marriage, they could already be processed for an immigrant visa as single, which would also include their children under 21 years of age (or eligible under the Child Status Protection Act or CSPA).

However, I want to warn and emphasize to people that just as there is the concept of a sham or fixed marriage, there is also the concept of a “sham divorce.” In other words, there are situations where people get married just for the papers and are not really in love, which is wrong and is a fixed or sham marriage. There are also situations where a couple is truly in love but terminates their marriage to take advantage of having one spouse’s immigrant visa processed in the faster F-1 category. This is also wrong and illegal.

However, if a person has been petitioned as married, but the marriage is truly over and beyond all repair, you should consult with an attorney who can evaluate your situation and determine if there truly is a legal way to “expedite” your petition by terminating your marriage.

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