How will divorce affect a filing?

IDear Mrs Walker-Huntington, HAPPENED to stumble on an article you wrote in the newspaper and I decided to write to you on behalf of a friend.

His wife went to the United States on a visiting visa and has decided not to return. My friend and his wife have both decided to begin divorce proceedings. As it relates to my friend, his mother is a naturalised United States citizen and is currently filing for him. He is wondering if the current situation with his wife will affect his filing.

I hope the foregoing information was enough to provide a response from you.

– W.W.

Dear W.W.,

Yes, his divorce can affect his filing in a positive way.

When his mother filed a petition for him to join her, she would have filed as a married son of an American citizen. That placed your friend in the F3 preference category. Visa availability in that category takes a very long time, and currently visas in that category are available for people who were filed for before April 15, 2008.

Once he is divorced, he should advise the National Visa Center (NVC) with a certified copy of the final divorce order and ask to be moved to the F1 preference category. That is the category for the unmarried sons of American citizens. Visas are currently available in that category for people who were filed for before May 22, 2014. Clearly there is an approximate six-year difference for the two categories.

You didn’t indicate when your friend’s mother actually filed for him, but if by chance his divorce is not final when his consular processing of his visa begins, he should proceed by himself – along with any children – and advise the NVC that his wife will not be included in the visa processing. Please be aware that pursuant to a US Presidential Proclamation of June 23, 2020, certain immigrants will not be issued US residency until December 31, 2020. This restriction comprises both categories in which your friend could possibly be included. He should continue to process and respond to any prompts from the NVC as the applications will continue to be processed.