4 ways filing for divorce can benefit your immigration case

“You only need to provide your spouse notice that you filed a divorce by personally serving your spouse the divorce petition and summons.” 

COUPLES get divorced for various reasons.  California is a no fault state.  The reasons why a couple is getting divorced are often irrelevant to the issues of the family law case.  Divorce is often a difficult and negative experience for most families.  However, getting divorce may have some unintended benefits in the immigration law arena.  Four situations in which filing for divorce can be beneficial to your immigration case are as follows:

Married sons and daughters of U.S. citizens

If you were petitioned for legal permanent residence by your US Citizen parent as a married son or daughter 21 years old or over, you are classified in immigration law under family sponsored third preference (F3) which usually carries a long wait time.  The wait time for Filipinos for example is currently 22 years. The priority date is normally the date the petition was initially filed by your US Citizen parents.  If you get divorced, you revert back to single status and your category automatically becomes reclassified to first preference (F1) where the waiting time is substantially shorter.  For example, for Filipinos the wait time under F1 category is 10 years shorter than F3 category.    This means if your parents filed your immigration petition 12 years ago, then you can adjust to a green card now instead of waiting another 10 years.

Married sons and daughters of legal permanent residents

If our parents are legal permanent residents, getting divorced will convert you back single status making you eligible to be petitioned by your legal permanent resident parents under the family based second preference (F2b) category if you are 21 years old or older or under the family based second preference A (F2a) if you are under 21 years of age. 

For those who married after they were petitioned by their LPR parents (F2A and F2B), the petition is automatically revoked under operation of law the moment you get married and cannot be reclaimed by a divorce.  In theory, it can be argued that filing a subsequent petition after your divorce under the same category inherits the previous petition’s priority date under 9 FAM 42.43 N10 and 8 CFR 204.2(h), Part 205.  However, success of such argument is not clear since the old petition was automatically revoked the moment you married.  The best thing that can be done in this situation is to have your LPR parent repetition you as an F2A or F2b even if you are unable to reclaim the previous petition’s priority date.

Conditional legal permanent residents in failed marriages

For those who obtained their legal permanent residence status through marriage based petition by their US Citizen spouse of less than 2 years marriage, the legal permanent residence status conferred is usually a “conditional legal permanent residence” valid only for 2 years.  The couple would need to sign and file a joint petition to remove this condition prior to the expiration of the 2 years or the conditional legal permanent resident spouse would fall out of status. 

The problem arises when the marriage is in trouble.  Often it becomes difficult to obtain the cooperation of the US Citizen spouse specially when the couple has separated.  US Citizen spouse often refuse to sign the I-751 for or appear at the I-751 interview if one is set by the USCIS.  Filing for divorce would terminate the marriage and allow you to file a “waiver” of the joint petition to remove the conditional LPR status based on entering into the marriage in good faith.  Terminating the marriage by filing a divorce is a requirement in order to file the “waiver.”  It is important to time this correctly as soon as the marriage starts falling apart because by terminating the marriage early on, you might be able to file the waiver before the expiration of your 2 year conditional LPR thus allowing you to extend your LPR status in 1 year increments until a final decision is made in your case.

Married aliens in non-imm grant visas and those without status

For those who enter the US as a non-immigrant and are separated from their spouse but still married, filing a divorce would open up opportunities in case they meet a new significant other who is a US Citizen and who can petition them as an immediate relative.  This is usually the fastest of process in obtaining legal permanent residence.  In countries such as the Philippines where there is no divorce, many people come to the US to start a new life after they have been separated from their old spouse (often still married to them).  Even if the alien over stays their status as a visitor, the alien can still adjust to that of a legal permanent residence if petitioned by a US Citizen spouse.  If the alien was never inspected, the alien can still adjust to legal permanent residence if they are grandfathered under INA 245(i) and there are no special restrictions on their status.  To be grandfathered under INA 245(i), the alien must have been a beneficiary of a legal permanent residence petition filed no later than April 30, 2001.

Finally, a common concern of divorcing immigrants is “What happens if my spouse refuses to sign the divorce papers?”  The truth is you do not need your spouse’s signature to obtain a divorce in California.  You only need to provide your spouse notice that you filed a divorce by personally serving your spouse the divorce petition and summons.  In countries that are members of the Hague Convention, special procedures need to be followed to effect service.  So yes it is possible to divorce your spouse even if your spouse is in a country that does not recognize divorce among its citizens such as the Philippines.  For some immigrants, filing for divorce opens up opportunities in this land of milk and honey.

* * *

Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C.  This article is not a solicitation.

* * *

Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.