Although it may be possible for a noncitizen who obtained a green card or legal permanent resident status from the green card petition of a former spouse to file a green card petition for a new spouse, immigration regulations significantly restrict this possibility. We discuss the options for obtaining a green card through marriage here.
Marriage within five years of petitioner’s obtaining lawful permanent resident status
Immigration regulations restrict a legal permanent resident who obtained status through a prior marriage to file a green card for a new spouse by not permitting the filing of such a petition within five years of the petitioner receiving the green card.
However, the regulation does create exceptions to this rule.
First, the petition may be granted if the petitioner can establish by clear and convincing evidence that the first marriage through which the green card was obtained was not entered for the purposes of evading immigration laws or put another way, that the marriage was not entered into solely for the purpose of obtaining the green card.
Second, the petition may be granted if termination of the first marriage was based on the death of the prior spouse.
Evidence to establish that the prior marriage was not entered to evade immigration laws include:
- Documents showing joint ownership of property.
- Documents such as a lease showing that the prior marriage shared a common residence.
- Documents showing that the prior marriage commingled financial assets and resources
- Birth certificates of children born to both the petitioner and the prior spouse
- Affidavits sworn or affirmed by third parties having personal knowledge of the prior marriage including how the witness acquired knowledge of the prior marriage.
- Finally, any other documentation relevant to showing that the prior marriage was not entered into solely to obtain the green card or evade immigration laws.
As a result, the petitioner in the new marriage, should look to resubmit the evidence submitted in his/her prior green card case with additional evidence that was acquired after obtaining the green card and before the divorce.
This may result in cases where the divorce occurred right after the green card was obtained in having difficulty in acquiring approval of the new green card petition.
Attempting to qualify for the exception based on proving that the prior marriage is real is similar to the process of attempting to qualify for removal of conditions of a green card obtained based on a marriage that existed for less than two years based on one of the exceptions to remove the conditional status when the marriage was terminated. We discuss the removal of conditions process including its exceptions here.
Finally, it should be noted that immigration officials tend to give significant importance to the fact that a couple had a common child as a strong indicator that the marriage was real, so these cases may have a good potential for approval.
Regardless, the best advice is to speak to one of our attorneys about this case, so we can advise you of the chances of approval and the best way to present the case to increase the chances of approval.
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This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.
