If I get a green card based on marriage, then I get divorced, can I sponsor someone from my home country for a green card?
Hi, I'm Jim Hacking, immigration lawyer, practicing law throughout the United States at our office here in St. Louis, Missouri. This is a situation known in our office as a pivot case. This is the case where there's a US citizen, and the US citizen sponsor someone for a green card, either here in the United States or from overseas, and then the green card is received, and then all of a sudden marriage discord arises and the US citizen and the green cardholder divorce. So now there's a green cardholder and they want to marry someone, usually back from the home country, to bring them here and get them a green card.
So we call it a pivot because this person is pivoting from not having an immigration benefit to being a green cardholder. They're pivoting from being a beneficiary into being the sponsor, and they're trying to bring someone else into the picture.
Now, I remember the first time I came across one of these cases. I was talking to somebody on the phone, and it was a consult, he had sent me a denial of an I-130 that he had filed as the pivotor. It turns out that he'd gotten divorced and remarried to the foreign national overseas about three years after the original marriage and had turned right around to try to get a green card for someone back home.
Now, these cases are very dangerous. What do I mean by that? Well, number one is, if you try to sponsor someone from the home country less than five years after the prior case, then you're going to trigger an analysis and you're most likely going to be denied. And, more importantly, they're going to now presume that you, the pivotor, engaged in immigration fraud when you married that US citizen. So you're going to have to be ready to prove by clear and convincing evidence that the original marriage was valid.
The safer thing to do is if you get that green card and then you end up getting divorced, of course at that point you're going to have to wait the full five years to apply for citizenship, and once you get your citizenship, that's when you should apply for the foreign national. You need to make sure that you're doing the math and calculating the five years correctly, but it's something that you need to be careful about. So don't just go filing for the new spouse right away, you need to think it through.
Because a lot of times the government believes that you are always married or always in a relationship with the person back overseas and that this first marriage was just a way for you to get a green card so then you could then sponsor your loved one overseas.
We've actually seen this case more than once. It's very upsetting. I highly recommend that you don't do this and that if you are in a situation where you got a green card based on marriage, then you got divorced and you want to sponsor someone else, before you do anything, you need to talk to an immigration lawyer so that you can talk through this issue of the intent and the presumption that maybe that first marriage was fake.
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