Can Conditional Resident Divorce, Remarry, Then Get Green Card Based on New Marriage?

Options when a conditional resident spouse divorces then remarries another U.S. citizen during the two-year "testing period."

By , Attorney Florida Coastal School of Law

Few marriage-based green card cases are entirely simple. For instance, after making it through the first big hurdle, applying for and receiving a conditional green card for the foreign national based on marriage to a U.S. citizen, the following two-year testing period is when some marriages fall apart and head toward divorce. In some of those cases, the break-up happens because the immigrant falls in love with someone new.

That leads some immigrants to ask: "Because I am still in conditional resident status, could I simply remarry, then apply for a new conditional green card based on my new marriage, before my current status expires?"

Unfortunately, the answer is "no." This article will describe the more likely strategy for dealing with a situation where a would-be immigrant wants to marry someone different in the United States than the person who filed their initial visa petition, including a discussion of:

  • the possibility of letting your two-year conditional resident status expire before applying for status based on a new marriage, and
  • the alternative possibility of applying for permanent residence early, with a request for a waiver of the joint filing requirement based on divorce.

Should You Let Your Old Conditional Resident Status Expire?

You (the foreign national) would probably need to first lose your current conditional resident status before being 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 immigration status without filing your I-751 Petition to Remove Conditions on Residence. You will automatically lose lawful immigration status and be in the United States illegally, though U.S. immigration authorities are not likely to follow up or arrest you anytime soon.

Be aware of the risks, though, and don't wait around too long. If you're caught being unlawfully present, you'll have to present your case to a judge in immigration court proceedings. (You might also be interested in ICE Wants to Deport Me: Is It Too Late to Marry a U.S. Citizen?.)

After losing immigration status, it would make sense for you and your new U.S. spouse to submit a new marriage-based petition (USCIS Form I-130, Petition for Alien Relative) along with a green card application package (adjustment of status on Form I-485).

Expect U.S. immigration officers to look at your case with a good deal more suspicion than usual, however, given your recent divorce from your previous U.S. petitioner. They are always on the lookout for cases of immigration marriage fraud.

Should You Submit an Early I-751 With a Divorce Waiver, Instead?

In the alternative, you might consider submitting an early I-751 petition. Although normally you would be required to file this jointly with your current U.S. spouse, in a divorce situation you'd have grounds upon which to submit a waiver request asking to file the petition by yourself, without the signature of your first and ex-U.S. spouse. (With regard to timing, 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 scenario, however, if your I-751 petition is denied by U.S. Citizenship and Immigration Services (USCIS), you could find yourself referred to removal (or deportation) proceedings before you and your U.S. spouse have had an opportunity to file your I-130 petition and green card application.

Still, in such a situation, the immigration judge would normally give you as much time as is required for 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, so as to preserve your ability to file your green-card application at an overseas consulate without penalty.

Getting Legal Help

What's described here is a complex case. In such a situation, you would greatly benefit from the assistance of an experienced immigration attorney.

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