Friday, December 30, 2011

The Impulsive Marriage and Losing Your Visa Priority Date

A common problem that arises in the immigration context is a young marriage that results in the loss of a priority date of a visa petition filed by the lawful permanent resident parent for their son or daughter.  A priority date is the date the visa petition is filed with immigration (US CIS).  
For those subject to the visa bulletin and the visa quota system, which is anyone in the family category who is not an immediate relative of a U.S. citizen, the priority date determines where you are in line and how soon your visa will become available so you can apply for a green card. For certain countries like the Philippines and India, the backlog can be over 20 years in certain categories and priority dates go back as far as 1988.  So, it is very important not to lose the priority date (your place in line) or you have to start all over again in line, in most circumstances.
Under the Immigration and Nationality Act, when the immigrant is being sponsored by a Lawful Permanent Resident parent for a visa petition and the immigrant decides to get married, their priority date is automatically lost upon marriage because he or she is no longer an “unmarried child of a permanent resident.” There is no category for visa sponsorship under federal immigration law for a married child of a lawful permanent resident.
Many have the false belief that a subsequent divorce will cure the problem and reinstate or recapture the priority date, which it cannot. This can be an especially harsh reality in a situation where one immigrant marries another immigrant that lacks legal status. 
The immigrant with a pending immigrant visa filed by a parent on their behalf may be the only way the immigrant may obtain a green card.  Always talk with an immigration lawyer to determine if there is a faster route to residency besides the family petition or a different immigrant visa that may apply to you if you want to get married and are in this category.
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