Will my divorce reduce my wait time for green card?

DEAR Attorney Tan,

I am a Filipino living in Los Angeles.  I am a US Citizen who filed an immigrant petition for my adult son in June 2005.  At the time when the petition was filed, my son was unmarried and 25 years old.  In 2010, my son became married.  Due to difficulties in his marriage, his wife is presently in the process of obtaining a divorce in Nevada.  Is my son eligible for a green card?  — C.P.

Answer:  Dear C.P.,

When you filed the immigrant petition in June 2005, your son was classified under the “First Preference” category, as an unmarried adult son of a US citizen.  As a preference category relative, your son has to wait for a visa number to become available before he could obtain an immigrant visa or adjust status to permanent residence.  The wait time for visa number availability varies, depending on preference category.

If an unmarried adult son or daughter beneficiary is married before an immigrant visa or green card is issued (i.e. while waiting for a visa number to become available), the beneficiary’s petition automatically converts from a “First Preference” petition to a “Third Preference” petition–a petition for a married son or daughter of a US Citizen. 

In your case, when your son married in 2010, the petition that you filed for your son automatically converted to a “Third Preference” petition.  As a “Third Preference” beneficiary, your son became subject to a longer wait time to obtain an immigrant visa or green card, compared to when he was classified under the “First Preference” category prior to marriage.

If a “Third Preference” beneficiary (married son or daughter of US Citizen) becomes widowed or divorced, the petition filed on his behalf automatically converts to the “First Preference” category.  In your case, once your son gets divorced, the Petition that you filed in June 2005 automatically converts back to “First Preference” category.  With the automatic conversion, the wait time for a beneficiary is significantly lesser.   

Under the May 2019 visa bulletin, immigrant visa and green card applications are being processed for “First Preference” petitions that were filed May 15, 2007 or earlier.  For “Third Preference” petitions, visa and green card applications are being processed for petitions that were filed on or before October 8, 1996. 

Your son would be eligible to apply for a green card immediately upon divorce since USCIS is presently processing green card applications based on petitions filed May 15, 2007 or earlier for those in the “First Preference” category.  Until he gets a divorce, as a “Third Preference” beneficiary, your son is subject to an approximate wait time of 9 years before he can get his green card.  He would have to wait until USCIS advances the date for the Third Preference category from October 8, 1996 to the date on which you filed the petition for your son (June 2005).   

P.S.  I warn against getting a “quick divorce” in Nevada if neither your son nor daughter-in-law is a resident there.  There are certain residency requirements for a valid divorce decree in Nevada.  Your son will have to present a valid divorce decree to USCIS to show that he is unmarried, and properly classified under the “First Preference.” 

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.

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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010.  Tel:  (323) 639-0277.  Email: [email protected].

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