After the love has gone: Terminating your loveless marriage may have immigration advantages

Dear Atty Gurfinkel:

Years ago, my US citizen parent petitioned me as a married child (Category F – 3). However, my husband left me for another woman and started a family with her. I want nothing more to do with my husband, and his bruha mistress can have him.

I checked the priority dates for married children, and it is still years before I will be eligible to immigrate to the US under my father’s petition. Is there some way it can be expedited, or are there faster ways to immigrate to the US?

Very truly yours,

M.W.

Dear M.W.:

If you are truly “out of love” with your spouse, and there is no chance of reconciliation, you may want to consider terminating your marriage by divorce or annulment. After you receive a final court decree terminating your marriage, your visa petition will be reclassified from “married” (F-3) to “unmarried” (F-1). The priority date for the F-1 category moves faster than the category for married children of US citizens from the Philippines (F-3), meaning people who are unmarried can immigrate faster than married children.

Some people are in a “dead end” marriage, but stay married even though there’s no hope of reconciliation. As you can see, by terminating the loveless marriage legally, it could result in your priority date already being current in the F-1 category, instead of waiting for years for the F-3 category to be current.

However, I must caution you that there is an immigration doctrine or concept of “sham divorce.” Just like there are sham marriages (where people get married in order to obtain an immigration benefit), there is also the concept of sham divorce (where people get divorced, or terminate their marriage through annulment, solely to be reclassified from F-3 to F-1, yet they continue to live and have babies with their “divorced spouse.” A sham divorce is considered fraud.)

However, if the relationship has truly deteriorated and is unsalvageable, you may want to seek the advice of an immigration attorney, who can fully evaluate your case and circumstances, and offer appropriate guidance, in connection with your immigration situation.

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