My husband got his U.S. green card through a previous marriage: Can he sponsor me now?

A foreign-born person is best off waiting five years after obtaining a green card through marriage before petitioning for a new spouse to immigrate.

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Question

My husband and I are from Russia. We first met as students here in the U.S. five years ago. We dated for a few months and then broke up. He married an American girl the year after that. But they divorced three years later. He got his green card and his citizenship through the marriage. Then I ran into him a few months ago and we just fell in love all over again. This time we got married and now he wants to sponsor me for the green card. Can he do that even if he got his own green card through marriage?

Answer

Yes, but, unless you and your husband are willing to wait for another year or so before filing, the process might be difficult.

The reason for the difficulty is that the law wants people who divorce and remarry after getting a green card through marriage to wait at least five years after they get their green card before petitioning for a new spouse. The main exception is for U.S. petitioners whose previous marriage was ended by the death of their U.S. citizen or permanent resident spouse.

All other petitioners who choose not to wait the required five years should be ready to face high levels of suspicion from immigration officers that their previous marriage was fake. In legal terms, such petitioners will be required to prove by “clear and convincing evidence” that their previous marriage was not entered into just for the green card.

If your husband tries but fails to meet this requirement, the main consequence would be that he would be required to wait until the end of the five-year period before filing a new petition for you (which would give rise to much less suspicion).

If you are currently present in the U.S. without legal status, however, you could also be placed in removal (deportation) proceedings, even before your husband gets a chance to refile. In addition, if the immigration officers not only doubt that your husband’s previous marriage was real but also actually conclude that it was fake, this could put him in serious trouble.

With these considerations in mind, if you and your husband still choose to go forward with your green card case without waiting, then he could try to satisfy the “clear and convincing evidence” requirement by supplementing the evidence he already submitted during his own green card case with other documentation — in larger quantity and variety.

He should also be ready to answer interview questions from immigration officers in more detail and on matters other than those he had to deal with the first time around. Questions about the length of his previous marriage and the circumstances of its termination would be especially relevant. In addition, questions about your relationship with him prior to his previous marriage would also be relevant — because immigration officers would probably suspect that you both planned all along to get back together as soon as he obtained his immigrant or citizen status.

The assistance of an experienced immigration attorney could significantly improve you and your husband’s preparation for those kinds of questions.

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