Getting Divorced and Remarried as a Conditional Permanent Resident

Nov 10, 2015 | Conditional Residency

Getting divorced and remarried as a conditional permanent resident can be complicated. But immigration attorneys at The Law Office of TATIANE M. SILVA, P.A. Can help.


Conditional Green Card Divorce


Divorce can be challenging in any marriage. But, it can be even harder if you are in the U.S. on a marriage green card. Ending a marriage may affect your ability to stay in the United States.

As a Miami immigration lawyer, I have many clients who are currently married to a U.S. citizen, and are currently conditional residents. As you know, at the end of the two-year conditional residency period, you can apply to have the conditions removed and apply for a green card.

But, what happens if you are married to your U.S. citizen spouse, but soon after you got your conditional green card, you wanted to leave your spouse?


How Can a Divorce Affect Your Legal Status?


When an individual marries a U.S. citizen and gets a green card, it can either be a permanent or conditional green card.

A permanent green card is valid for ten years. In that case, divorce proceedings typically have no impact on the renewal process. When renewing a green card, an individual can simply file Form I-90. There will be no questions on marital status.

Unlike an individual with a lawful permanent resident status, an individual with a conditional card status may face certain issues. A conditional green card is valid for two years. If an immigrant has been married to their U.S. spouse for less than two years, their green card is conditional. During that two-year period, the U.S. Citizenship and Immigration Services (USCIS) will make sure the marriage is real or bona fide and not just for immigration purposes.

However, divorce won’t automatically terminate the validity of a conditional green card.


How to Divorce on a Conditional Immigration Status


U.S. immigration law requires that, in order to lift the conditions on the green card, spouses prove they are still married. Typically, spouses will have to prove to the USCIS that they entered the marriage in good faith. If the marriage lasted at least two years, a conditional residence can turn into a permanent residence. As a permanent resident, an individual can divorce more easily.

Filing for divorce while an individual is still a conditional resident can be a bit more complicated. However, an immigrant can file for divorce and file Form I-751 to lift the conditions even if the conditional green card’s expiration date is not near.

But, they will have to include a “waiver” request of the usual joint filing requirement, with both spouses’ signatures. They will also have to prove their marriage before the divorce was bona fide. Evidence can include proof that spouses were living together, had a child together, or their joint financial records. Spouses can also include a statement in writing explaining why the marriage ended.

In rare cases, an individual can apply to remove conditions if the spouses are separated but aren’t divorced. That can be done if one spouse refuses to grant a divorce to a conditional resident spouse. A conditional resident may be eligible to get a permanent green card if an extreme hardship is proven.


What Should I Do After Realizing That I Do Not Want to Be With My Current Spouse?


In cases like these, I usually tell clients that they would probably need to first lose their current conditional resident status before they are allowed to apply for a new one. The least confusing 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. You would also need to file for divorce from your current spouse.


Have More Questions? Call The Law Office of Tatiane M. Silva, P.A.

If you would like more information on getting divorced and then remarried as a conditional permanent resident, or on obtaining a green card through marriage, please contact the team of immigration attorneys at The Law Office of Tatiane M. Silva, P.A.

Our goal is to provide support and assistance tailored to the unique circumstances of your case.


Should I Submit a New Marriage Petition With My New Spouse?

Yes, it may make a bit more sense for you and your new spouse to submit a new marriage-based petition (I-130, Petition for Alien Relative) and a 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. In cases like these, you should strongly consider hiring a Miami immigration lawyer.


What Are My Other Options?

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.  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. However – be aware that in this second scenario. 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. Again, this is another reason why it would behoove you to hire a Miami immigration attorney to handle your case.