Does “Unmarried” Include Those Who are Divorced?

Marriage and Green Card Preference Categories

U.S. citizens and lawful permanent residents (LPRs) can petition for certain family members to receive green cards. These family members include married and unmarried sons and daughters of U.S. citizens, and unmarried sons and daughters of lawful permanent residents. For additional information, see our page on family-based petitions here.

The estimated wait time for a green card differs dramatically depending on whether the son or daughter is married or unmarried. As of March 2021, the estimated wait for a green card for a married son or daughter of a U.S. citizen is almost 13 years (those born in Mexico or the Philippines must wait substantially longer). In comparison, the estimated wait for a green card for an unmarried son or daughter of a U.S. citizen is about 6 years shorter – or almost half the time.

Therefore, it is important to understand who is and is not considered “married” for purposes of green card petitions.

The Immigration and Nationality Act makes clear that “unmarried” means that an individual at a specific time is not married, “whether or not previously married.” In other words, it does not matter whether a person was previously married and got divorced — if they are no longer married, they are considered “unmarried” for purposes of U.S. immigration law.

Be careful, however — if you are attempting to receive a green card as an “unmarried” relative, you must remain unmarried throughout the green card process. For additional information on the risks of changing marital status after submitting a green card petition, see our earlier post here.

Examples

Robert was married for 15 years, but got a divorce the week before his U.S. citizen father filed a green card petition on his behalf. Robert is unmarried for purposes of the petition.

After his father files the petition, Robert waits several years and, one month before he is scheduled to receive his green card, gets married. Robert is no longer unmarried for purposes of the petition.

Conclusion

One or more past marriages in the past do not prevent a person from being “unmarried” for green card purposes. The relevant timeframe is the period during which the individual is seeking the green card. As a result, it is important that individuals who have a pending green card petition exercise caution and consult with a qualified attorney if considering marriage.