Marriages don’t always work out – we all know that. It’s hard enough sorting out your differences in the process of divorce. If you add immigration issues on top of marriage issues, things can get even more complicated. The good news is if you get divorced when you’re under a conditional green card and then remarry, there’s a recent development that may make life a little easier.
Removing Conditions on Green Card
If you get your green card through marriage to a U.S. Citizen or Permanent Resident and you have been married less than 2 years when the green card is issued, you get a 2-year conditional green card. In the 90 days before the card expires, you and your spouse are supposed to file an I-751 Joint Petition to Remove Conditions on your residence by showing that you are still living together.
If you and your spouse aren’t together anymore, you may file an I-751 Waiver of Joint Filing Requirement by showing that you meet at least one of the grounds for a waiver:
- You married in good faith but the marriage has ended
- You experienced abuse in the marriage
- You will experience extreme hardship if you have to return to your home country
Even though the I-751 waiver is available for people where a marriage ends, some people never file to remove conditions on their green card or on their residence. They might not file an I-751 waiver because they fear they don’t have enough evidence that they lived with their spouse or proof of abuse that happened in their marriage. Some people just don’t understand that they can file a waiver – they don’t know it’s an option. Other times, people think the only way to remove conditions on their green card is to stay married to their spouse and try to file a joint I-751 petition. This is a huge problem if they’re in a marriage where there is abuse or simply hurt feelings or anger, because often their spouse refuses sign the I-751.
Divorce When You’re Under a Conditional Green Card and You Remarry
In recent years, there was a lot of confusion about what happens if a person is in the U.S. under a conditional green card but divorces his spouse and then remarries. If the new spouse is a U.S. citizen, the person should eb able to file to again get a green card based on this new marriage.
But this situation isn’t as simple as it seems. A person is a resident until an immigration judge holds that they no longer are or they formally abandon their residence in the United States. It doesn’t matter if their conditional residence expired, and it doesn’t matter if USCIS sent them something saying their conditional residence is terminated.
Ultimately, a judge is the only authority to make this determination. With this in mind, some USCIS offices would deny applications for green cards where the person had previously had permanent residence because they interpreted this to mean that a person who had a conditional green card had to go before an immigration judge, have their conditional green card taken away, and then apply to adjust status to permanent resident. To make things more confusing, this was contradictory to case law that said a person whose conditional residence was terminated by USCIS could file to get a new green card based on a subsequent petition!
Good News if You Divorce When You’re Under a Conditional Green Card and You’ve Remarried
If you had a Conditional Green Card but you never filed to remove the conditions because you and your spouse divorced and you’ve since remarried, you’re in luck: USCIS issued guidance in late November confirming that it can adjust the status of a person whose conditional residence was previously terminated who has a new basis to apply for adjustment of status. USCIS has updated its policy manual to reflect this.
Should I Go Ahead and File a New Green Card Application with USCIS if I’m Remarried?
Although the police changed announced by USCIS is good news for many people who had conditional green cards but have divorced and remarried, not everyone is eligible to file a new green card application with USCIS as a result of this announcement.
If you’re already in immigration court and the court has jurisdiction over your application, you will have to file it there. Who has jurisdiction – the court or USCIS - can vary depending on your personal circumstances. Filing with the wrong agency can cause delays and may result in your missing a filing deadline, so talk to an experienced immigration lawyer who can help you determine where you need to file and do this prior to any filing deadlines you may have.
Also, note that if there are any facts you did not disclose when you got your conditional residence, such as children born outside your marriage, or a prior marriage that you did not list, this is something that’s likely to come up in your new filing and will likely arouse suspicion about whether that marriage was a real marriage and not simply a sham marriage to get legal status even though you were given conditional residence. Likewise, if you and your prior spouse stopped living together or started seeing other people soon after your conditional green card was issued, this may also arouse suspicion about the prior marriage and why you did not file to remove conditions.
Because all marriages that were the basis of prior immigration filings will be scrutinized and not just the one you’re in now, you need to be ready to prove that your prior marriage that was the basis of your conditional green card was a real marriage and that your new marriage is as well.
Divorced When Under Conditional Green Card and I Want to Remarry
If you had a conditional green card but divorced and now you and your new spouse are ready to file for your green card, take the process seriously, because USCIS does. Your prior marital history and your spouse’s prior marital history will be reviewed and scrutinized. Don’t take chances in this process – be sure you file your best case at the start so you and your spouse have the best chance of approval and being able to stay together in the U.S.
If your conditional green card expired and you’re remarried, talk to an experienced immigration lawyer about your case so you can put your best case forward. Click this orange button below to learn more about our consultation process: