Can a Divorced Green Card Holder Sponsor a New Spouse?

A foreign-born person is best off waiting five years after obtaining a green card through marriage before filing and I-130 petition for a new spouse to immigrate.

Love's twists and turns can lead to complicated situations in the immigration context. Let's say, for instance, that a male foreign student marries an American woman and receives U.S. lawful permanent residence (a green card) on this basis, and eventually (after three years) U.S. citizenship. They divorce four years after the wedding. The husband then reunites with a girlfriend from his home country, they marry, and he hopes to sponsor her for a U.S. green card. Can he do that even if he got his own green card through marriage?

As this article explains, getting a green card for a new spouse after divorcing the spouse who got you a green card is possible. However, unless the couple is willing to wait a bit before filing, the process might be difficult.

Five-Year Restriction on Petitioning for a Spouse After Divorcing Original U.S. Petitioner

U.S. law is set up so that people who divorce and remarry after getting a green card through marriage are expected to wait at least five years after they got their green card before petitioning for a new spouse. (See 8 C.F.R. § 204.2.)

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 U.S. immigration officers that their previous marriage was fake (not bona fide). 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.

Strategies for Filing I-130 Before Five Years Are Up

If the U.S. citizen chooses to go forward with the green card sponsorship 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. Again, the point is to prove that he didn't use that U.S. citizen wife as a stepping stone to U.S. entry so that he could turn around and bring in another foreign-born person.

He should also be ready to answer interview questions from U.S. 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 the relationship with the immigrant now being petitioned prior to his previous marriage would also be relevant—because immigration officers would probably suspect that the two both planned all along to get back together as soon as he obtained his immigrant or U.S. citizen status.

What If U.S. Petitioner Files for Immigrant Before Five Years Are Up and Petition Gets Denied?

If the U.S. citizen husband (continuing with the above example) files an I-130 petition before the five years are up but fails to meet the "clear and convincing evidence" standard to USCIS's satisfaction, the primary consequence would be that he would have to wait until the end of the five-year period before filing a new I-130 petition (which would give rise to much less suspicion).

However, there's another potential problem if the immigrant is by that time present in the U.S. without legal status. The immigrant could be placed into removal (deportation) proceedings before the U.S. husband gets a chance to refile. In addition, if U.S. immigration officers not only doubt that the husband's previous marriage was real but also actually conclude that it was fake, this could put him in serious legal trouble.

Getting Legal Help

The assistance of an experienced immigration attorney could significantly improve your preparation for those kinds of questions. The lawyer can analyze red flags in the case and help prepare and gather convincing documentation, and write a cover letter or memo summarizing it all. The lawyer can also represent you before U.S. immigration authorities, whether in an interview or in deportation proceedings in immigration court.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you