Short answer: the bare fact that your spouse once petitioned someone else does not, by itself, satisfy either of the two provisions that deal with earlier marriages — and neither of them is about whom your spouse petitioned. One is about how the petitioner got their own green card: whether it came through an earlier marriage. The other is about the applying spouse's own history — a marriage entered into to evade the immigration laws, or an attempt or conspiracy to enter one. This article is about petitions and applications handled by USCIS. As of September 2026.
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The provision about the petitioner
This one applies to a narrow situation, and the narrowness is written into the statute. It covers a spousal second preference petition — the petition a lawful permanent resident files for a spouse. The statute defines the term that way in the same paragraph.
The rule is this. Such a petition may not be approved if the petitioner, by virtue of a prior marriage, was accorded permanent resident status as the spouse of a citizen or of a permanent resident — unless one of two things is true. Either five years have elapsed since the petitioner acquired permanent resident status, or the petitioner establishes, by clear and convincing evidence, that the earlier marriage was not entered into for the purpose of evading any provision of the immigration laws.
Three things follow directly from that text. The clock runs from the date the petitioner became a permanent resident, not from the marriage or the divorce. The alternative is the standard the statute names — clear and convincing evidence — and it asks about the earlier marriage rather than the present one. And the provision reaches a permanent resident petitioner. It is written for second preference petitions.
There is also a written exception. The rule does not apply where the prior marriage was terminated by the death of the petitioner's spouse.
The provision about the immigrating spouse
The second provision is written more broadly. Within the immigrant visa petitions it governs, it says no petition shall be approved if the applying spouse has previously been accorded, or has sought to be accorded, immediate relative or preference status as the spouse of a citizen or permanent resident by reason of a marriage determined to have been entered into for the purpose of evading the immigration laws — or if it has been determined that the person attempted or conspired to enter into such a marriage.
The differences from the first provision are these. This one is not limited to second preference petitions — the words are no petition, and that reaches immigrant visa petitions generally rather than only family ones. It reaches having sought the status, not only having received it. It reaches an attempt or conspiracy, with no completed marriage required. And no period of years is written into it.
One word in it matters as much as the rest. The marriage must have been determined to have been entered into for that purpose. That is a finding, not a suspicion and not an allegation, and it has to rest on evidence rather than on doubt. Where the question is an attempt or a conspiracy, the regulations call for substantial and probative evidence, and say that evidence must be in the person's file.
That does not mean the finding has to be an old one. The determination can be made in the case being decided now, so an earlier petition that was refused for thin evidence is not the same thing as a determination, and it is also not a guarantee that none will be made.
Keeping the history and the two limits apart
A petition is decided under these provisions, so the facts they turn on have to be in front of the officer deciding it. But a history of earlier petitions and the question whether either limit applies are two separate things. An earlier petition is not itself a finding under either provision.
One neighbouring point. A prior petition does not by itself create a support obligation: the statute writes that obligation as a contract the sponsor executes. But where someone signed an affidavit of support and that obligation has not terminated, the regulations count each alien still sponsored under it in the sponsor's household size for a new affidavit.
Where the answer splits
- A permanent resident petitioner who was accorded that status as the spouse of a citizen or of a permanent resident, by virtue of an earlier marriage, is inside the first provision. One question there is a date: whether five years have passed since residence was acquired. If they have not, the alternative is clear and convincing evidence about that earlier marriage.
- A citizen petitioner is not inside that provision, which is written for second preference petitions. Other rules may still apply, but that one does not.
- A prior marriage that ended with a spouse's death is outside the first provision by its own terms.
- A determination that the applying spouse was accorded, or sought, spouse-based status by reason of a marriage entered into to evade the immigration laws — or that they attempted or conspired to enter such a marriage — is a different provision entirely, with no period of years written into it.
What does not change the rules
- How long ago the earlier petition was, for the second provision. That one is written without a period.
- That the earlier petition was withdrawn or never approved. The second provision reaches having sought the status.
- That an earlier case was refused over paperwork. A refusal on the evidence is not the same thing as a determination that a marriage was entered into to evade the immigration laws. What the second provision asks is not whether a marriage was genuine in some general sense but whether it was entered into for the purpose of evading the immigration laws — and it reaches an attempt or conspiracy as well.
- A divorce. The first provision counts from when residence was acquired, not from when a marriage ended.
FAQ
My husband is a citizen and petitioned an ex-wife years ago. Does the five year rule apply? That rule is written for spousal second preference petitions, which are the ones a permanent resident files. It does not reach a citizen petitioner.
My wife is a permanent resident who got her green card through a previous marriage. Can that petition be approved? That provision stops standing in the way once five years have elapsed since she acquired permanent resident status, or on clear and convincing evidence that the earlier marriage was not entered into to evade the immigration laws. Clearing that provision is not the same as meeting the other requirements for approval.
The earlier petition was denied. Is that the determination this provision needs? No. The second provision turns on a marriage determined to have been entered into to evade the immigration laws. A denial is not automatically that determination.
Is there a time limit on the marriage fraud provision? The statute does not write one into it, unlike the five year rule in the other provision.
General information only — not legal advice for your case. Prior results do not guarantee a similar outcome.
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