News & Insights

The 5 Year Rule – Getting Remarried as a Green Card Holder

Obtaining a green card through marriage is often described as one of the easiest ways to obtain lawful permanent residency.  However, what happens if after obtaining the green card you get divorced?  Can you get remarried and sponsor your new spouse?

While this is certainly possible, if an individual received a green card through marriage, which ultimately ended in divorce, it is not a good idea to re-marry a foreign spouse for at least 5 years from the date on which they obtained the green card.  This is because there is a specific rule in the Code of Federal Regulations (CFR) that makes it much more difficult for your new foreign spouse to receive their green card.  This rule states as follows:

A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless:

(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or

(2) The marriage through which the petitioner obtained permanent residence was terminated through death.”

This means in order to successfully file a petition for their new spouse the green card holder must be able to demonstrate that their former marriage (upon which they received their green card) was bona-fide unless their former spouse passed away.

In order to demonstrate that the first marriage was bona-fide it is necessary to submit documentation similar to what was submitted the first time around i.e., evidence of cohabitation, comingling of finances and communications.

However, unless a copy of the original submittal was saved obtaining this documentation may be extremely difficult especially if the green card holder no longer has access to these documents and/or is no longer speaking with their former spouse.

It may seem odd to have to show that the first marriage was real, considering you already had to demonstrate this the first time around plus the fact that USCIS issued you a green card based on this marriage.  However, a filed petition where the second marriage occurs within 5 years will receive a high level of scrutiny and USCIS will not dig up the original file, which means the burden is on you to prove that the first marriage was not a sham.

Ideally, an individual who obtained a green card through marriage should wait at least 5 years before getting remarried to a foreign national.  If you do not want to wait 5 years, then be prepared to receive a Request for further Evidence (RFE) or a Notice of Intent to Deny (NOID) from USCIS asking you to prove that the first marriage was real.

To overcome this type of challenge, we recommend submitting photographs of you and your prior spouse, evidence that you lived together, evidence of joint bank accounts, credit cards, car insurance, etc., and evidence of communications such as text messages, e-mails.  If you are still in touch with your ex-spouse, you should strongly consider asking them to provide an affidavit outlining your relationship and confirming that the relationship was real.

For further information regarding the above please contact PLG Partner, Chris Prescott, at cprescott@patellegal.com

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