I filed for N-400 based on the marriage to a USC for 3 yrs (Check is already cleared)and my wife decided to move out to an apartment at the end of this month, which is a seperation (Not a leagal seperation). My 3 year anniversary of the AOS is 10/31/05 (GC). We dated and engaged for 2 years and married for 4 years 2 months. I will still have all the bills coming to our primary residence and house and the cars will be still under our names. We are not planning to file for divorce until the first part of next year (or until after the N-400 interview) and planning to file the taxes jointly for 2005, which we had done for the past four years. We are still good friends. My question is how should I handle this situation? Should I proceed with my N-400 process? I read loads of postings and could not find something that addressed my specific situation. All your help and advise is much appreciated. Please advise. Thanks in advance -AJ
To qualify under section 319 you have to have been a legal permanent resident and still married and living with a United States citizen for 3 years. My take is that if after submitting the N400 (which you can do 3 months prior to reaching the 3 years mark) but are now separated, you are not eligible under this section of law. Section 319 cases are looked at more closely because it requires a valid marriage to a U.S. citizen for 3 years to be able to naturalize. I'd suggest a consultation with an immigration attorney to make sure. You can naturalize on your own when you have been an LPR for 5 years, but if it is perceived as misrepresentation this time around, it could add an additional 5 years before you could file for citizenship again. When in doubt, check it out.
Posts: 1176 | Location: ..the natural world | Registered: 06-13-2005
sappyconifer Thanks a bunch for your response. I had made a decision to go ahead and tell the truth about the seperation to the INS officer during the interview, that my wife and I are sperated as of 10/01/05 (That is when she moving out). Couple of things I wanted to find out, Is it advisable to withdraw my filing before the interview or Should I go to the interview and tell the office about the change of status? This is the first time I heard about if the application get rejected based on ineligibility due to the continuation of the marriage and living together requirement that I could have to wait 5 more years from that point onward to even apply for the citizenship again? Does telling the truth is deemed as a misreperesentation? Because my wife was living with me and everything was fine when I filed the N-400? Please clarify, Thanks again!
AJW, As I suggested earlier, a quick consultation would be best. The regulations speak of the impact of separation and divorce after filing and prior to the award of citizenship.
8 U.S.C. 1103, 1430, 1443.
§319.1 Persons living in marital union with United States citizen spouse. (a) Eligibility. To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:
(1) Has been lawfully admitted for permanent residence to the United States;
(2) Has resided continuously within the United States, as defined under §316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;
(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;
(4) Has been physically present in the United States for periods totaling at least 18 months;
(5) Has resided, as defined in §316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence and in which the alien has filed the application;
(6) Has resided continuously within the United States from the date of application for naturalization until the time of admission to citizenship;
(7) For all relevant periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and
(8) Has complied with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in §316.2 (a)(3) through (a)(5) of this chapter.
(b) Marital union"”(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.
(2) Loss of Marital Union"”(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.
(ii) Separation"”(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.
(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.
(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.
(c) Physical presence in the United States. In the event that the alien spouse has never been in the United States, eligibility under this section is not established even though the alien spouse resided abroad in marital union with the citizen spouse during the three year period.
sappyconifer U rock! I will follow your advice and talk to an attorney before I will proceed. However withdrawing my application looks like the best route I should take at this time unless my wife agrees to stay at home until my oat ceremony. Anyhow I wanted to find out from you the procedure for Withdrawal of N-400 application before the interview. I sent my n-400 to Nebraska Service Center. Thanks again for you contribution to this forum. People like you make a huge difference for someone like me seeking information. Keep up you great work!
A citizenship application which is filed based upon 3yrs rule for being married to a US citizen is investigated more carefully than other applications for citizenship. But this investigation is not about finding the bonafide of the marriage as to whether applicant's marriage is real or not; instead it is about whether or not applicant STILL happily married and living together with his/her USC-spouse; otherwise applicant is not eligible to get naturalized under 3 yrs rule.
That is why, USCIS always requires applicant for N-400 to submit as many as possible supporting documents along with N-400 to prove that s/he is STILL married and living together with his/her USC-spouse. And since some adjudication officers are easy going than others, then it is possible that they might not even ask you anything about your marriage or current relationship if you have submitted a lot of documents along with N-400 to prove the relationship. But then there are always some officers who are very tough, particularly when they take their job very seriously. In that situation, you would need to expect a higher scrutiny on this issue.
Nevertheless, most officers always ask from applicants about their spouse, like where is your spouse, what your spouse does, etc.... They ask these questions to find out whether or not applicant is still married and living together with his/her USC-spouse. Hence, it is always advisable to take your USC-spouse together with you on your citizenship interview, even though they would not ask for it on ˜interview appointment letter', nor it is a requirement like it is at the time of AOS. If officers would know that your USC-spouse is there, they usually don't ask any question about marriage at the time citizenship interview. Because it proves to them in itself that applicant is still married and living together with his/her USC-spouse.
You said that- [1] you and your wife have no plan to file for divorce until sometime in next year or until your N-400 is decided; [2] car and house are still in both names for you guys; [3] all the bills still come to primarily address where you live; [4] you and your wife is still good friend, then I think you can proceed with your pending N-400. I believe your wife will cooperate on this with you, especially when you said that you guys are still good friends. Friends are there for each other's, isn't it? Obviously, only TRUE friends. She doesn't need to live together with you if you guys are not going to tell to anyone about this, obviously not to USCIS.
Honestly, I personally don't see any reason for you to even think about withdrawing your pending N-400 because- [1] no divorce application is filed yet, [2] you still have all the documents in joint names to prove the validity of on-going relationship between you guys, [3] and there is a very good chance that your wife might go along with you in this stuff until you naturalizes if you guys are still good friends as you claim. What is the problem then?
But if you think that you should be honest about this, or if you believe that your wife might not go along with this until you naturalizes, then you should withdraw your pending N-400 by writing a simple letter to Service Center and local USCIS office. Write them very briefly that because of personal reason, you have decided to withdraw your pending N-400 at this time. No need to write a "bible". Make sure to send it thru a certified mail with signature required.
Waiting to tell the officer on your interview date about all this is stupidity and nonsense. Because it won't make any difference in their decision anyway. Because your pending N-400 would get denied anyway once officer would come to know about your separation. Because any separation between the parties, formal or informal, makes applicant ineligible for naturalization under 3 yrs rule if such separation has to do with ending the marriage. So, why would you like to wait until the interview date? Do you think officer MAY approve your application? No. Officer won't approve it if officer would come to know about this.
Further, if your pending N-400 is EVER denied because of you now being separated from your wife, then you won't need to wait another 5 yrs to file it again; instead you can file it under 5 yrs rule as soon as you will be eligible for it based upon the date when you became LPR. Why? Because, you did not lie about your relationship on N-400 because you were happily married when you filed it. If you would lie to them about your separation upon asked and if they will catch this lie, then they will deny your application under bad character. Only then, you will have to wait for another 5 yrs from the date they would deny your application; otherwise you don't have to worry about waiting for another 5 yrs.
The whole point is-if you guys are not going to tell to anyone about your separation, then how would anyone know about this? Nobody can read mind of you guys, especially when all the documents are in joint names and no divorce is filed yet. Rest is upto you. But if you decide to go with it, then make sure to take your wife, marriage certificate, and jointly filed tax returns with you on your interview date.
At last, if you go to any immigration attorney for advise on your situation, then attorney would tell you the same what I've said. This is a matter of your personal choice. Like- if you want to be honest, then withdraw your pending N-400. But if you guys are not going to tell anyone about your separation, then go for N-400 until its end. The ball is in your court and not in attorney's court.
"Tact is the ability to stay in the middle without getting caught there."
Posts: 657 | Location: East Hampton [Long Island], New York [USA] | Registered: 10-08-2003
A separation formal/legal or otherwise is material to his eligibility or lack of, for naturalization purposes. The regulations do not consider the filing of the application, but speak of "admission to citizenship" that occurs sometimes many months after submission. Why would anyone take such a chance and potentially screw up in the final stages of immigration?
Posts: 1176 | Location: ..the natural world | Registered: 06-13-2005
Sammy, You said [quote]But if you decide to go with it, then make sure to take your wife, marriage certificate, and jointly filed tax returns with you on your interview date.[/quote].
My question is must the tax returns be filed JOINTLY?
At times there is tax adavantage to file SEPARATELY. So that should be OK as well right?
It seems rather paradoxical that folks fret over being asked if they ever received a traffic citation, which is of little consequence to the approval, but appear perfectly comfortable blurring the letter of the regulations where it relates to expeditious eligibility based upon a viable marriage to a US citizen.
To each his own.
Posts: 1176 | Location: ..the natural world | Registered: 06-13-2005
I am almost in the same shoes with you, the difference is that I have already had my interview for n-400. The day of the interview my wife was with me but they did not even let her in the office, and she stayed in the lobby, although hey asked me if I have a proof that we are still married. Now it is almost 7 month after the interview and I still have not heard any thing about my oath ceremony. Things are not great between me and my wife and I was wondering if you got any more info about your case.
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