Can conditional resident divorce, remarry, then get green card based on new marriage?

It's not as simple as switching from one spouse to the next with regard to marriage-based permanent residence applications!

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Question

My U.S. citizen husband and I were married for about one year. Just a few months after I got my conditional green card, I realized I had made a big mistake. I won’t go into details but the fact is I realized I love someone else. I could not lie to my husband and so I told him. He got very angry and filed for divorce. I really want to get remarried as soon as possible. But because I am still in conditional resident status, I am afraid this might complicate things too much. Could I simply apply for a new conditional green card based on my new marriage, even before my current status expires?

Answer

You would probably need to first lose your current conditional resident status before you are allowed to apply for a new one. The least confusing way to do this would be to wait until the day after the expiration of your current status without filing your I-751 Petition to Remove Conditions on Residence.

At that point, it would make a bit more sense for you and your husband to submit a new marriage-based petition (I-130, Petition for Alien Relative) and green card application package. Expect immigration officers to look at your case with a little more suspicion, however, given your recent divorce from your previous petitioner.

In the alternative, you might consider submitting an early I-751, with a waiver request that would allow you to file the petition by yourself based on your divorce. (I-751 waiver petitioners do not need to wait for the expiration of their conditional resident status: they can file their petition at any time.) This process would be cheaper and would give you an opportunity to obtain a permanent resident card without having to go through yet another period of conditional resident status.

In this second scenario, however, if your I-751 petition is denied, you could find yourself in removal (or deportation) proceedings before you and your husband have had an opportunity to file your I-130 petition and green card application.

Still, in such a situation, your immigration judge would normally give you as much time as is required for U.S. Citizenship and Immigration Services (USCIS) to process the I-130. If the petition is approved, the immigration judge would then decide whether to approve your green-card application. If the petition is denied and the judge refuses to extend you more time to process a new I-130, you might consider requesting voluntary departure, which might preserve your ability to file your green-card application at a consulate without penalty.

This is a complex case. You would greatly benefit from the assistance of an immigration attorney.

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