Can a Conditional Resident Get a Green Card on a New Basis?

Becoming a lawful permanent resident in the U.S. and getting a green card is a big step for many immigrants. If you get your green card through marriage and your marriage is less than two years old at the time your application is approved, you will first be given conditional permanent resident (CPR) status. Your CPR status will be valid for two years and is meant to make sure that your marriage is genuine – not just for immigration purposes.

Removing the Conditions on your Residence

To keep your green card, you will need to file an I-751 petition to remove the conditions on your residence, either jointly with your spouse (within the 90-day window that precedes the expiration of your CPR status) or a waiver petition on your own based on good faith marriage, hardship, or having been an abused spouse. If you file the I-751 petition on time, your CPR status will be extended and will continue while USCIS processes your petition.

But what if things change – like a divorce or a new marriage – and you now have a new way to qualify for a green card? Can you still adjust your status?

The General Rule: No Adjustment While Still a Conditional Resident

In most cases, if you are still a CPR, you cannot apply for a new green card through a different family or employment-based immigrant petition. This is because U.S. immigration law effectively blocks adjustment of status for those still holding CPR status.

The Exception: If Your CPR Status Is Terminated

There is one major exception to this general rule, based on a key legal case called Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). In short, this case says that if your CPR status is terminated, you can apply for a new green card under a different category – as long as you meet all the usual requirements.

How CPR Status Gets Terminated

Your conditional green card can be terminated if:

• You don’t file the joint I-751 petition in time (and you do not have a good reason for filing late).
  
• You fail to attend your I-751 interview.
  
• USCIS makes a determination that your marriage was fraudulent and entered into for the sole purpose of obtaining permanent residence.
  
• You get divorced from your U.S. citizen spouse during your 2 year CPR period.
  
• USCIS denies your I-751 petition.

Note that USCIS will usually send you a letter informing you that your CPR status is being terminated and you will be given an opportunity to respond before your status is officially terminated.

What Happens After Termination?

Once your CPR status is officially terminated:

• You may be placed in removal (deportation) proceedings before the U.S. Immigration Court.
  
• You can apply for a green card again under a new basis – like a new marriage or employment-based immigrant petition – either in immigration court or possibly through USCIS.
  
• USCIS will still process a new I-130 (family petition), even if your CPR status hasn’t been officially terminated yet.

Important Details

You might still be in a gray area between the termination of your CPR status and being placed in removal proceedings before the U.S. Immigration Judge. During this time, you can ask USCIS for temporary proof of status (like an I-551 stamp).

You will continue to hold and maintain a form of temporary CPR status unless or until the U.S. Immigration Judge upholds the termination of your status, or you agree to voluntarily relinquish your CPR status by abandonment or leaving the U.S.

If you are already in removal proceedings, an Immigration Judge can review the denial of your I-751 and decide if you can adjust your status through a new petition.

If you already have a final removal order, things get more complicated. Matter of Stockwell can help you if your CPR status is terminated. However, adjusting status after a final order involves separate legal challenges.

The Bottom Line

Normally, you can not apply for a new green card while are still in CPR status. And this makes logical sense if you think about it, because you already are a permanent resident (even though conditionally). However, if your CPR status is terminated – especially because you did not file an I-751 petition – you may qualify to adjust status on a new basis, such as, for instance, through a new marriage or an employment-based immigrant petition. Matter of Stockwell and long-standing USCIS policy support this path. However, because removal proceedings are often involved and the procedures can be very complicated, it’s important to consult an experienced immigration lawyer to help you navigate this process.

If you have questions about this blog post or would like to discuss your immigration case, call U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation.