green card Remarry under conditional green card

[Emma0768 0]

Hi, I am holding a two years greencard now base on my first marriage. My ex husband filed for divorce after 7 months after we got married. My two year greencard is expiring in April 1st. I remarried 3 months ago to my second husband. Should I wait for my current greencard to expire before applying for the new greencard, or should I do it before it expires? Will the USCIS consider the date I sign on the form, the date I mail out or the date they receive the documents as the date I submit the application? 

[Ayrton 965]

6 hours ago, Emma0768 said:

Hi, I am holding a two years greencard now base on my first marriage. My ex husband filed for divorce after 7 months after we got married. My two year greencard is expiring in April 1st. I remarried 3 months ago to my second husband. Should I wait for my current greencard to expire before applying for the new greencard, or should I do it before it expires? Will the USCIS consider the date I sign on the form, the date I mail out or the date they receive the documents as the date I submit the application? 

You must file for ROC with a divorce waiver. You could've done that as soon as you got your devorce decree. No need to wait.

[mindthegap 2,590]

It used to be the case that you could not adjust status from a new marriage, and you still had to file for, and have approved, removal of conditions for your old marriage, despite being remarried.

 

That was changed and clarified in the last 18 months  - not least due to ‘matter of Stockwell’:

 

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

 

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

 

As for when you file, this is really one for a competent attorney to advise you on. 

 

Edited March 22, 2021 by mindthegap

[annab864 55]

39 minutes ago, mindthegap said:

It used to be the case that you could not adjust status from a new marriage, and you still had to file for, and have approved, removal of conditions for your old marriage, despite being remarried.

 

That was changed and clarified in the last 18 months  - not least due to ‘matter of Stockwell’:

 

https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20191121-CPRs-Stockwell.pdf

 

 

https://www.uscis.gov/news/alerts/uscis-issues-guidance-on-adjustment-of-status-by-aliens-whose-conditional-permanent-residence-has

 

https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3150.pdf

 

As for when you file, this is really one for a competent attorney to advise you on. 

 

Am I understanding correctly that those conditional residents that got divorced before their ROC was approved are eligible to ‘finish the process’ with a new marriage? Even if their AOS case was connected to a different marriage prior? Or does their case have to get denied first before they remarry and start the process all over again? 
I’ve read the links but still had a hard time understanding haha. 

[Mollie09 1,543]

9 hours ago, Emma0768 said:

Hi, I am holding a two years greencard now base on my first marriage. My ex husband filed for divorce after 7 months after we got married. My two year greencard is expiring in April 1st. I remarried 3 months ago to my second husband. Should I wait for my current greencard to expire before applying for the new greencard, or should I do it before it expires? Will the USCIS consider the date I sign on the form, the date I mail out or the date they receive the documents as the date I submit the application? 

You could have filed as soon as your divorce was final, you should file ASAP but no later than the expiration date. Do not let the green card expire, they will consider the date they received the package.

[mindthegap 2,590]

1 hour ago, annab864 said:

Am I understanding correctly that those conditional residents that got divorced before their ROC was approved are eligible to ‘finish the process’ with a new marriage? Even if their AOS case was connected to a different marriage prior? Or does their case have to get denied first before they remarry and start the process all over again? 
I’ve read the links but still had a hard time understanding haha. 

 

Wrong terminology - they aren't 'finishing' anything, as that would involve completed and being approved for ROC.

 

I will try to clarify

Previously, if you obtained a GC via marriage and failed to file or be approved for ROC, you could not adjust to a new GC based on a new marriage - once your status was terminated by a judge for failure to file/ denial of ROC, you were deportable and that was that. You had to lose your status, be removed/voluntary removal, and then file for a new spousal GC from OUTSIDE of the US.

 

This update on policy changes that - you can now have your status terminated for failure to file/ denial, and then you CAN adjust status based on a new marriage, by filing a new I-485, WTHOUT having to leave the US, and can effectively forget all about the first marriage and having to ROC for the first marriage.

This is a HUGE change.

 

Section G here clarifies a little better:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

"G. Conditional Permanent Residents

In general, an alien granted lawful permanent resident status on a conditional basis^[20] is ineligible to adjust status on a new basis under the provisions of INA 245(a).^[21] Instead, conditional permanent residents (CPRs) must generally comply with the requirements of INA 216 or 216A to remove the conditions on their lawful permanent resident status.^[22]

This bar to adjustment, however, only applies to an alien in the United States in lawful CPR status. In Matter of Stockwell (PDF),^[23] the Board of Immigration Appeals adopted a narrow interpretation of the regulation implementing this adjustment bar,^[24] stating that the bar no longer applies if USCIS terminates the alien’s CPR status.^[25]

USCIS can terminate CPR status for reasons specified in INA 216 or INA 216A. ^[26] Although the immigration judge may review the termination in removal proceedings, the bar no longer applies upon USCIS terminating the CPR status; it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s CPR status before the alien may file a new adjustment application.

Therefore, under INA 245(a), USCIS may adjust the status an alien whose CPR status was previously terminated, if:^[27]

• The alien has a new basis for adjustment;

• The alien is otherwise eligible to adjust;^[28] and

• USCIS has jurisdiction over the adjustment application.^[29]

When seeking adjustment of status again, the alien may not reuse the immigrant petition associated with the previous CPR adjustment or admission. Therefore, the alien must have a new basis to adjust.

An alien seeking to adjust status again who was admitted as a fiancé(e) (K nonimmigrant) may only re-adjust based on an approved Petition for Alien Relative (Form I-130) filed by the same U.S. citizen who filed the Petition for Alien Fiancé(e) (Form I-129F) on his or her behalf.^[30]

The alien must also be otherwise eligible to adjust status including not being inadmissible or barred by INA 245(c).

Adjudication and Decision

If the alien successfully adjusts status on a new basis, USCIS generally considers the date of admission to be the date USCIS approved the subsequent adjustment application.^[31] Time spent in the prior CPR status does not count toward the residency requirement for naturalization purposes.^[32]

If USCIS determines the alien is not eligible to adjust, USCIS denies the application.^[33] USCIS officers should follow current agency guidance on issuing a Notice to Appear after denying the application.^[34]"

 

 

 

Google results will give you many forum and lawyer posts referencing the old procedure, and others may post on here telling you that you MUST file for ROC for the old marriage, as that is what you previously had to do, so it may be a little confusing to sift through stuff! But the above is the latest * currently in effect policy. 

 

However, I am not sure how that translates to what you need to do here. Do you need to fail to file, receive a letter of denial, and then are free to file a new I-485? Can you voluntarily abandon it by filing an I-407? It does clarify that you do not need to go all the way to court and termination of status by an immigration judge, which is a good thing.

 

Many things are possible DIY, but this is one instance where I suggest finding a competent lawyer for advise - not necessarily to file for you, but to clarify the links and what I have pasted above, to ensure you file at the correct time. 

Also, be aware that if your new marriage is less than two years old at the time of your new gc APPROVAL, you will  then have to do ROC for that new marriage at a later date.

 

 

[annab864 55]

17 minutes ago, mindthegap said:

 

Wrong terminology - they aren't 'finishing' anything, as that would involve completed and being approved for ROC.

 

I will try to clarify

Previously, if you obtained a GC via marriage and failed to file or be approved for ROC, you could not adjust to a new GC based on a new marriage - once your status was terminated by a judge for failure to file/ denial of ROC, you were deportable and that was that. You had to lose your status, be removed/voluntary removal, and then file for a new spousal GC from OUTSIDE of the US.

 

This update on policy changes that - you can now have your status terminated for failure to file/ denial, and then you CAN adjust status based on a new marriage, by filing a new I-485, WTHOUT having to leave the US, and can effectively forget all about the first marriage and having to ROC for the first marriage.

This is a HUGE change.

 

Section G here clarifies a little better:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

"G. Conditional Permanent Residents

In general, an alien granted lawful permanent resident status on a conditional basis^[20] is ineligible to adjust status on a new basis under the provisions of INA 245(a).^[21] Instead, conditional permanent residents (CPRs) must generally comply with the requirements of INA 216 or 216A to remove the conditions on their lawful permanent resident status.^[22]

This bar to adjustment, however, only applies to an alien in the United States in lawful CPR status. In Matter of Stockwell (PDF),^[23] the Board of Immigration Appeals adopted a narrow interpretation of the regulation implementing this adjustment bar,^[24] stating that the bar no longer applies if USCIS terminates the alien’s CPR status.^[25]

USCIS can terminate CPR status for reasons specified in INA 216 or INA 216A. ^[26] Although the immigration judge may review the termination in removal proceedings, the bar no longer applies upon USCIS terminating the CPR status; it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s CPR status before the alien may file a new adjustment application.

Therefore, under INA 245(a), USCIS may adjust the status an alien whose CPR status was previously terminated, if:^[27]

• The alien has a new basis for adjustment;

• The alien is otherwise eligible to adjust;^[28] and

• USCIS has jurisdiction over the adjustment application.^[29]

When seeking adjustment of status again, the alien may not reuse the immigrant petition associated with the previous CPR adjustment or admission. Therefore, the alien must have a new basis to adjust.

An alien seeking to adjust status again who was admitted as a fiancé(e) (K nonimmigrant) may only re-adjust based on an approved Petition for Alien Relative (Form I-130) filed by the same U.S. citizen who filed the Petition for Alien Fiancé(e) (Form I-129F) on his or her behalf.^[30]

The alien must also be otherwise eligible to adjust status including not being inadmissible or barred by INA 245(c).

Adjudication and Decision

If the alien successfully adjusts status on a new basis, USCIS generally considers the date of admission to be the date USCIS approved the subsequent adjustment application.^[31] Time spent in the prior CPR status does not count toward the residency requirement for naturalization purposes.^[32]

If USCIS determines the alien is not eligible to adjust, USCIS denies the application.^[33] USCIS officers should follow current agency guidance on issuing a Notice to Appear after denying the application.^[34]"

 

 

 

Google results will give you many forum and lawyer posts referencing the old procedure, and others may post on here telling you that you MUST file for ROC for the old marriage, as that is what you previously had to do, so it may be a little confusing to sift through stuff! But the above is the latest * currently in effect policy. 

 

However, I am not sure how that translates to what you need to do here. Do you need to fail to file, receive a letter of denial, and then are free to file a new I-485? Can you voluntarily abandon it by filing an I-407? It does clarify that you do not need to go all the way to court and termination of status by an immigration judge, which is a good thing.

 

Many things are possible DIY, but this is one instance where I suggest finding a competent lawyer for advise - not necessarily to file for you, but to clarify the links and what I have pasted above, to ensure you file at the correct time. 

Also, be aware that if your new marriage is less than two years old at the time of your new gc APPROVAL, you will  then have to do ROC for that new marriage at a later date.

 

 

Thank you so much for all the time and information you provided!! Very very helpful! And such a relief to know that those of us who have divorced still have a chance to reapply if our cases get denied! Definitely a huge change! 

[Dashinka 24,494]

2 hours ago, mindthegap said:

 

Wrong terminology - they aren't 'finishing' anything, as that would involve completed and being approved for ROC.

 

I will try to clarify

Previously, if you obtained a GC via marriage and failed to file or be approved for ROC, you could not adjust to a new GC based on a new marriage - once your status was terminated by a judge for failure to file/ denial of ROC, you were deportable and that was that. You had to lose your status, be removed/voluntary removal, and then file for a new spousal GC from OUTSIDE of the US.

 

This update on policy changes that - you can now have your status terminated for failure to file/ denial, and then you CAN adjust status based on a new marriage, by filing a new I-485, WTHOUT having to leave the US, and can effectively forget all about the first marriage and having to ROC for the first marriage.

This is a HUGE change.

 

Section G here clarifies a little better:

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-7

 

"G. Conditional Permanent Residents

In general, an alien granted lawful permanent resident status on a conditional basis^[20] is ineligible to adjust status on a new basis under the provisions of INA 245(a).^[21] Instead, conditional permanent residents (CPRs) must generally comply with the requirements of INA 216 or 216A to remove the conditions on their lawful permanent resident status.^[22]

This bar to adjustment, however, only applies to an alien in the United States in lawful CPR status. In Matter of Stockwell (PDF),^[23] the Board of Immigration Appeals adopted a narrow interpretation of the regulation implementing this adjustment bar,^[24] stating that the bar no longer applies if USCIS terminates the alien’s CPR status.^[25]

USCIS can terminate CPR status for reasons specified in INA 216 or INA 216A. ^[26] Although the immigration judge may review the termination in removal proceedings, the bar no longer applies upon USCIS terminating the CPR status; it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s CPR status before the alien may file a new adjustment application.

Therefore, under INA 245(a), USCIS may adjust the status an alien whose CPR status was previously terminated, if:^[27]

• The alien has a new basis for adjustment;

• The alien is otherwise eligible to adjust;^[28] and

• USCIS has jurisdiction over the adjustment application.^[29]

When seeking adjustment of status again, the alien may not reuse the immigrant petition associated with the previous CPR adjustment or admission. Therefore, the alien must have a new basis to adjust.

An alien seeking to adjust status again who was admitted as a fiancé(e) (K nonimmigrant) may only re-adjust based on an approved Petition for Alien Relative (Form I-130) filed by the same U.S. citizen who filed the Petition for Alien Fiancé(e) (Form I-129F) on his or her behalf.^[30]

The alien must also be otherwise eligible to adjust status including not being inadmissible or barred by INA 245(c).

Adjudication and Decision

If the alien successfully adjusts status on a new basis, USCIS generally considers the date of admission to be the date USCIS approved the subsequent adjustment application.^[31] Time spent in the prior CPR status does not count toward the residency requirement for naturalization purposes.^[32]

If USCIS determines the alien is not eligible to adjust, USCIS denies the application.^[33] USCIS officers should follow current agency guidance on issuing a Notice to Appear after denying the application.^[34]"

 

 

 

Google results will give you many forum and lawyer posts referencing the old procedure, and others may post on here telling you that you MUST file for ROC for the old marriage, as that is what you previously had to do, so it may be a little confusing to sift through stuff! But the above is the latest * currently in effect policy. 

 

However, I am not sure how that translates to what you need to do here. Do you need to fail to file, receive a letter of denial, and then are free to file a new I-485? Can you voluntarily abandon it by filing an I-407? It does clarify that you do not need to go all the way to court and termination of status by an immigration judge, which is a good thing.

 

Many things are possible DIY, but this is one instance where I suggest finding a competent lawyer for advise - not necessarily to file for you, but to clarify the links and what I have pasted above, to ensure you file at the correct time. 

Also, be aware that if your new marriage is less than two years old at the time of your new gc APPROVAL, you will  then have to do ROC for that new marriage at a later date.

 

 

Do they still have the choice of completing the ROC from the first marriage with a divorce waiver or does that choice go away if they have remarried?

[mindthegap 2,590]

22 minutes ago, Dashinka said:

Do they still have the choice of completing the ROC from the first marriage with a divorce waiver or does that choice go away if they have remarried?

Of course.

You could still file with a divorce waiver (or abuse waiver/whatever is appropriate), but with only a short seven month marriage, it might be a bit of an uphill battle getting it approved - not least due to a lack of bonafide evidence.

If it then got denied you would be in the same position as simply having not bothered to file for the first one and getting the denial. 

 

 

[Dashinka 24,494]

1 hour ago, mindthegap said:

Of course.

You could still file with a divorce waiver (or abuse waiver/whatever is appropriate), but with only a short seven month marriage, it might be a bit of an uphill battle getting it approved - not least due to a lack of bonafide evidence.

If it then got denied you would be in the same position as simply having not bothered to file for the first one and getting the denial. 

 

 

I tend to agree, but if the OP already has the evidence of a bonafide marriage number 1, they could avoid going through the ROC again down the road.  Anyway, it is good to know the OP has some good options.

 

Thanks!

[Mollie09 1,543]

2 hours ago, mindthegap said:

Of course.

You could still file with a divorce waiver (or abuse waiver/whatever is appropriate), but with only a short seven month marriage, it might be a bit of an uphill battle getting it approved - not least due to a lack of bonafide evidence.

If it then got denied you would be in the same position as simply having not bothered to file for the first one and getting the denial. 

 

 

My first marriage lasted 10 months and ROC was approved without interview 🤷‍♀️

[Family 3,988]

On 3/21/2021 at 10:26 PM, Emma0768 said:

Hi, I am holding a two years greencard now base on my first marriage. My ex husband filed for divorce after 7 months after we got married. My two year greencard is expiring in April 1st. I remarried 3 months ago to my second husband. Should I wait for my current greencard to expire before applying for the new greencard, or should I do it before it expires? Will the USCIS consider the date I sign on the form, the date I mail out or the date they receive the documents as the date I submit the application? 

Any updates on your case ? 

Did you end up filing the I-751 w divorce waiver from marriage # 1 ?

Did you wait to get a Termination Letter or file to re-adjust through new spouse? 
 

Hope you check in and update. Thank you