Does Losing My Conditional Green Card, Getting Divorced and Remarrying Affect Applying for A Lawful Permanent Resident Status

Every marriage has problems and many end in divorce. It is also very difficult to sort out your differences in the divorce procedure. Adding immigration problems on top of your marriage affairs can get extremely complex. However, the good news is that if you got divorced under a conditional green card status and then remarry, there is a current development that may make life much easier.

Removing Conditions on Green Card

If you acquired a green card based on marriage to a U.S. Citizen or Lawful Permanent Resident and you were married for less than 2 years when you received a green card; United States Citizenship and Immigration Services (USCIS) will have likely tendered a conditional green card. If your conditional green card is approaching its expiration date both you and your spouse are required to submit an I-751, Joint Petition to Remove Conditions on your residence by proving that you still reside in the U.S. together with your spouse.

Now, in case you and your spouse separated or got divorced you must file an I-751 Waiver of Joint Filing Requirement by demonstrating that meet at minimum one of the following grounds for a waiver such as:

  • You had a good faith marriage
  • Abuse in the marriage was evident
  • Extreme hardship will be experienced if you were to return to you home country

Even though an I-751 waiver is accessible to individuals whose marriage has ended, some people never file to remove conditions on their residence. There are many reasons as to why an I-751 is not filed with USCIS and they are:

  • Fearing they do not have sufficient evidence that shows they lived with their spouse
  • They have no proof of abuse that occurred in their marriage
  • Others do not understand that they can file a waiver and they do not know it’s an option
  • Several others think the only way to remove conditions on their green card is to stay married to their spouse and attempt to file a joint I-751 application

This then becomes a big problem if there is abuse or simply hurt emotions in a marriage because oftentimes the U.S. citizen or lawful permanent resident spouse is unwilling to sign the I-751 waiver.

Divorce Under a Conditional Green Card Status and Remarrying

In previous years, there was a lot of confusion about what happens if a person is in the U.S. with a conditional green card but divorces his or her spouse and then remarries. If the new spouse is a U.S. citizen the beneficiary should be able to submit an I-751 application based on his or her new marriage.

Remarrying and filing to remove conditions is not as easy as it seems. A person is a resident until an immigration judge maintains that they no longer are or they formally abandon their residence in the U.S. It does not matter if their conditional residence expired or if USCIS sent in notification in the mail stating that their conditional residence is terminated.

Ultimately, an immigration judge is the only authority to make such a decision. With this in mind many USCIS offices would deny green card applications where the person previously had permanent residence because the USCIS officer interpreted this to mean that an individual who had a conditional green card had to go before an immigration judge, have their conditional green card taken away and then he or she had to apply to adjust status to permanent residence.

There Is Hope When You Divorce While Holding a Conditional Green Card and Remarrying

Any foreign national who has had a conditional green card but never filed to remove the conditions because either he or his spouse divorced and since then got remarried they are in luck. USCIS issued an updated guidance that confirms that it can adjust the status of immigrants whose conditional permanent residence has been terminated who has a new basis to apply for adjustment of status.

Am I At Risk If I File a New Green Card Application With USCIS If I’m Remarried

Not everyone with conditional green cards who divorced and remarried are eligible to apply for a new green card. Although the policy change announced by USCIS might be good news for many people who had conditional green cards there is no guarantee that a green card will be granted.

Any applicant who is in an immigration court that has jurisdiction over their application will have to file it there. Who has jurisdiction, the court or USCIS depends on personal circumstances. Filing with the wrong agency can cause delays and may result in missing a filing deadline, so it is best to ask an immigration attorney for help.

When Is A Good Time to Hire An Immigration Lawyer

Once a conditional green card expires and you get divorced and you remarry, visit a well seasoned immigration attorney. Make sure to explain your situation in detail so you can put your best foot forward. Do not take the risk by filing a new green card application alone. Gambacorta Law Office and team will accompany you through the application process. Schedule a consultation by calling at 847 443 9303.