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

It's not as simple as switching from one U.S. spouse to the next with regard to marriage-based permanent residence applications in the United States.

Few marriage-based green card cases are entirely simple, or a perfect match for the criteria. Even 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 a time when some marriages fall apart and head toward divorce. And 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, even 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.

Timing Concerns When a Conditional Resident Wishes to Marry a Different U.S. Citizen Sponsor

In brief, 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. At that point, it would make a bit more 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.

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 U.S. spouse 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, 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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