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

Through my 36 years of practice, I have often received inquiries regarding a situation where a conditional 2 year resident based on marriage to a U.S. citizen is looking to get divorced and then apply for a new green card based on marriage to another U.S. citizen. It's not as simple as switching from one spouse to the next.  There are complex issues which needs to be addressed in such cases. A typical scenario would be as follows: 

 

My U.S. citizen husband and I were married for about one year. Just a few months after I got my conditional green card, I realize that I want to divorce my husband.  Now I want to marry another U.S. citizen, but I am still in conditional resident status.  Can I simply apply for a new conditional green card based on my new marriage, even before my current status expires?

 

The answer to the above scenario is not such an easy one.  You may need to first lose your current conditional resident status before you are allowed to apply for a new one. One way to do this would be to wait until the day after the expiration of your current status without filing your I-751 Petition to Remove Conditions on Residence. At that point, it may be prudent for you and your husband to submit a new marriage-based petition  (I-130, Petition for Alien Relative) and green card application package. Expect immigration officers to look at your case with a little more suspicion, however, given your recent divorce from your previous petitioner.  Also, there may a Notice To Appear issued to you wherein you would have process the new marriage-based green card application in Immigration Court.

 

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 give you an opportunity to obtain a permanent resident card without having to go through yet another period of conditional resident status and decrease the chance of having to process the case in Immigration Court.

 

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 husband 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 terminate any immigration removal proceedings.  Needless to say, these are complicated issues which require careful planning before deciding on the course of action to take.

 

Please feel free to contact Michael H. Markovitch for any questions you may have regarding applying for an immigration benefit based on marriage to a USC.