Dear Mrs Walker-Huntington,

I am currently married with children and am on filing. My mother-in-law filed for my husband and the family in 2006. My husband and I are no longer living as husband and wife though we are not yet divorced. My question is, will my filing for divorce slow the process of them being filed for? Would they have to start the filing process over with him being single or would it automatically continue? I am concerned that my action might affect the whole filing process. I am anxiously awaiting your response.

Yours truly,
R.J.

Dear RJ,

If your mother-in-law was a United States (US) citizen at the time she filed for her married son, then overall, your husband and children should be fine.

When your mother-in-law filed for her married son he was placed in the F3 preference category – the married son of an American citizen. In that category, when the file is ready for consular processing, i.e., when the file is at the National Visa Center and before the immigrant visa interview, the married son (the primary beneficiary) can change his derivative beneficiaries. This means that if the beneficiary divorces and remarries or acquires children who were not born at the time of the initial filing, they too can accompany him to the United States.

A divorce will actually help your children and ex-husband. Once your divorce is final, your former husband would need to send the Decree Absolute to the National Visa Center to advise them that his marital status has changed. This will lead to your ex-husband and children being moved up from the F3 category to the F1 preference category – unmarried adult son of a US citizen. The waiting period in the F1 category is significantly shorter than the F3. As an example, in January 2012 the priority dates that are being processed in the F3 category are November 1, 2001 and in the F1 category it is October 15, 2004.

However, if your mother-in-law was a green-card holder when she filed for her married son then the filing is void. This is so even if your mother-in-law became a US citizen during the course of the filing. A green-card holder cannot file for a married child.

This is a most important distinction because we see many adult children who are filed for by green-card holder parents and these sons and daughters get married while their parents are still green-card holders and not disclose this fact to the US authorities. We also see adult children who are married, but their parent files for them as if they are single. In these situations the beneficiary of the visa (as a single person) has actually committed fraud and remains in constant danger of deportation from the United States. This situation leads to permanent separation from wives and sometimes children because documents can lead to disclosure.

n Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate & personal injury law. She is a mediator, arbitrator and Special Magistrate in Broward County, Florida. info@walkerhuntington.co