Immigration Corner | Waiting in vain for 12 years

Dear Mrs Walker-Huntington,

My dad filed for me to live in the USA in 2003, and when my boyfriend realised that my papers were coming through, he asked me to marry him, which I did. Things were not going well between us, so when I got a call from the embassy for my first interview, I told them that I no longer wanted him be to included in the filing process. I found out that he was cheating on me and only wanted to be with me because of the prospect of living in the USA.

The embassy told me to bring in my divorce papers, but at the time I didn’t have the money to do the divorce. I have been separated from this person for more than 12 years now and I am waiting on him to divorce me.

During this time, my dad passed away, so now I don’t know what will happen to my filing when I get the divorce. Please advise me what to do.

AS

Dear AS,

I am so sorry that you have sat around for more than 12 years, because of a major misunderstanding on your part. A married beneficiary is the only beneficiary of a petition for a green card. The spouse and any children that the person being filed for are related to are derivative beneficiaries. It is up to the beneficiary to decide which derivative beneficiary to add to the consular processing.

There are many instances where after a filing is ready for visa processing, a derivative spouse decides that they do not want to migrate. Or, sometimes the spouse decides to ‘follow to join’. Or, as in your situation, the marriage has broken down and you the beneficiary decide that they do not want the derivative spouse to migrate. The National Visa Center (NVC) or the US Embassy is told of the decision by the beneficiary and the filing proceeds without the derivative beneficiary. The United States cannot force you to divorce in order to proceed with your filing – as long as the category in which your visa petition corresponds with your marital status.

If you were filed for as single, married during the process, did not advise the NVC and the file proceeded as if you were single, you would be told to wait until a visa in the married category was available, or that you could get divorced and proceed in the single category.

Now that your father has passed away, this will complicate your situation. You should first find out if your file is still open, or if it was closed for lack of engagement in the process. If it is still open, you would need to notify the US of the death of your father and proceed under the humanitarian reinstatement process. You may still have a lifeline with this 2003 petition, but you need to act sooner rather than later.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator, and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com