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

Few marriage-based green card cases are entirely simple. For instance, after making it through the first 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 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 status and be in the U.S. illegally, though immigration authorities aren't likely to follow up or arrest you anytime soon.

At that point, 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) and green card application package.

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 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, with a waiver request that would allow you to file the petition by yourself, without the signature of your first U.S. spouse, 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 scenario, however, if your I-751 petition is denied by U.S. Citizenship and Immigration Services (USCIS), you could find yourself in 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.