Question: I obtained my green card through marriage, then I got divorced. Can I now sponsor a new spouse?
Answer: Yes, but if you obtained your green card through marriage and you are not a citizen, you might have to provide extra evidence to prove the genuineness of your first marriage.
The Five-Year Rule
The “five-year rule” states:
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 . . . .8 CFR § 204.2(a)(i)(A)
However, there are two exceptions to this five-year waiting period. You may sponsor a new spouse whom you married within five years of obtaining a green card if:
- you establish by clear and convincing evidence that the marriage through which you gained permanent residence was not entered into for the purpose of evading the immigration laws, i.e., the marriage was a bona fide marriage; or
- the marriage through which you obtained permanent residence was terminated due to the death of your spouse.
Why Most People Should Wait Five Years to Sponsor a New Spouse
As noted above, it is possible to bypass the five-year waiting period by establishing that the marriage through which you gained permanent residence was bona fide. A bona fide marriage is a legitimate marriage—not one entered solely for the purpose of obtaining a green card. Although it may seem odd to have to prove that your initial marriage was bona fide after already having done so once, anyone who attempts to sponsor a spouse within five years of obtaining a marriage green card will receive a high level of scrutiny from the United States Citizenship and Immigration Services (USCIS).
Therefore, if you obtained your green card through marriage and you are not a U.S. citizen, you should wait at least five years before getting remarried to a foreign national. If you fail to wait five years, you should be prepared to provide documentation to USCIS demonstrating that your first marriage was legitimate.
Does the Five-Year Rule Apply to Citizens?
Although a lawful permanent resident (a green card holder) is subject to this five-year rule, a person who obtained a green card through marriage and who is now a citizen does not have to wait five years after termination of the marriage to sponsor a new spouse.
Common Situations Involving Sponsorship and Remarriage
The three most common situations involving sponsorship and remarriage are as follows:
- A citizen files a green card petition for an immigrant spouse. The couple then divorces. The citizen remarries and files a new green card petition for his or her new immigrant spouse. Because the petitioner is a citizen, not a permanent resident, the five-year rule does not apply.
- A citizen files a green card petition for an immigrant spouse. The immigrant spouse obtains a green card. The couple then divorces. The immigrant, who is now a green card holder, remarries and files a petition for his or her new spouse, who is also an immigrant. The five-year rule applies to their application.
- A citizen files a green card petition for an immigrant spouse. The immigrant spouse obtains a green card. The couple then divorces. The immigrant then becomes a citizen. The immigrant, who is now a citizen, remarries and files a petition for his or her new spouse, who is also an immigrant. The five-year rule does not apply because the petitioner is a citizen.
ImmiFree.Law is The Harrison Law Firm P.C.’s online platform to make the family immigration and naturalization process more efficient, accurate, and affordable. Baya Harrison, Esq. is an attorney licensed in New York, Florida, and California. Attorney Harrison has helped numerous individuals and families navigate the U.S. immigration process, specifically family-based petitions and naturalization.