Published:  August 27, 2014

As discussed in this column previously, the Green Card via marriage to U.S. citizen option can be a quick and easy route for most foreign nationals, whether residing in the U.S. or abroad.  For example, a qualified foreign national residing in the U.S., whether in lawful status, or even out of status, entering into a bona fide marriage to a U.S. citizen will receive an Employment Authorization Document within 90 days of filing, and an actual green card within 6-8 months of filing – assuming all goes well during the applicant’s “adjustment of status” interview at their local Department of Homeland Security/Citizenship and Immigration Services office.

Aside from an applicant’s criminal past, a previous, unsuccessful marriage based green card filing is one of the most common bases for denying a subsequent filing premised on a new marriage.  No, not every 2 time marriage based applicant is automatically denied.  In fact many such applicants are approved without any issues.  It’s just that the applications filed by 2nd time around applicants will get a ton more scrutiny, and can be denied if the immigration official determines that the earlier filing involved a fraudulent or insincere marriage.

A foreign national being petitioned for U.S. residency for a 2nd time and by a new U.S. spouse, will find that the earlier filing on their behalf will very much play a role in the decision-making process for this second petition.  If there exists any evidence that the foreign national and the previous U.S. petitioner never resided together, or otherwise entered into the marriage for the sole purpose of facilitating an immigration benefit, then by law the new petition must be denied.  For certain, though, the foreign national and their new spouse will generally have a chance to review and respond to any adverse evidence at issue and explain any perceived wrongdoing or inconsistencies.

Importantly, a disgruntled U.S. citizen who previously petitioned their foreign national spouse cannot and will not have the last word on the fate of the foreign national and their future immigration filings after their previous filing was either denied or withdrawn.  That is, an angry or scorned ex-spouse may do their best to taint the foreign national’s file and poison any future attempt at residency with accusations about the foreign national’s infidelity, intent to deceive and otherwise dishonest behavior.  However, as stated, the foreign national will be able to respond to such allegations and place the accusations in context.

On the other hand, a previous immigration filing on behalf of the foreign national may have prompted an investigation, and led to the issuance of a report detailing the foreign national’s scheme to deceive or otherwise enter into a marriage for only immigration purposes.  Again, the foreign national at issue will have a chance to respond to any such evidence, and document or otherwise explain how the conclusions regarding fraud are just plain wrong.

The bottom line is that foreign nationals looking to obtain green card status after a previous unsuccessful marriage, and green card filing, should expect a thorough review of their case, especially with regard to the facts surrounding the earlier, failed marriage/filing.

PUBLISHED August 27, 2014– “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois