NOTE: The information contained on this page site is intended to educate the general public and is not intended to provide legal advice. To ensure proper handling of your individual situation, please call (703) 527-1779.
If you are a Lawful Permanent Resident (LPR; also known as a green card holder) of the United States, you are usually eligible for naturalization (to become a U.S. citizen) five years after you receive your green card, provided that you meet all of the other requirements set forth by the U.S. Citizenship and Immigration Services (USCIS). You can apply 90 days before your eligibility, so five years minus 90 days from the date you became a permanent resident. However, if you are married to, and living with, a U.S. citizen (and your spouse has been a U.S. citizen for the last three years), you are eligible for naturalization three years after receiving your first green card. Again, you can file 90 days before. You can take advantage of this shortened wait period for spouses of U.S. citizens, even if your green card was not based on your marriage to that U.S. citizen.
However, sometimes your circumstances may change while your naturalization application is pending. For example, you may have applied for naturalization based on your three-year residence in the United States while married to and living with a U.S. Citizen. But while your naturalization application is pending, you may separate from your U.S. citizen spouse. You now wonder whether you are still eligible for naturalization.
This article will help explain some basic questions about whether you are still eligible for naturalization if you separated from your U.S. citizen spouse after applying for U.S. citizenship based on your marriage. Whether you are legally separated, informally separated, and involuntarily separated from your U.S. citizen spouse while your naturalization application is pending, we encourage you to talk to an experienced lawyer directly about your specific case in order to avoid any potential problems or complications.
Why am I Required to “Live in Marital Union” With My U.S. Citizen Spouse?
According to the U.S. immigration laws, naturalization applicants filing on the basis of marriage to U.S. citizens must be the spouses of a U.S. citizen from the time of filing the naturalization application until the applicants take the Oath of Allegiance.
The immigration laws require that you, as the applicant, “live in marital union” with your U.S. citizen spouse prior to the filing of the naturalization application. “Living in marital union” means that you, the applicant, and your U.S. citizen spouse reside together.
As the applicant, you are not eligible for naturalization if:
- You are not residing with your U.S. citizen spouse at the time of filing or during the time in which you are required to be living in marital union with the citizen spouse; or
- If at any time prior to taking the Oath of Allegiance, your spousal relationship is terminated or altered to such an extent, then you or your U.S. citizen spouse cannot be considered to be residing together as husband and wife.
In all cases, you, as the applicant, must prove that you have lived in marital union with your U.S. citizen spouse for the required period of time.
What if I am Legally Separated?
If you, the applicant, are legally separated from your U.S. Citizen spouse, you may not be eligible for naturalization based on a three-year residence in the United States, and your pending naturalization application may not be approved. USCIS defines “legal separation” as a formal process where the rights of a married couple are altered by a judicial decree, but without eliminating the marital relationship (divorce). USCIS explains that in most cases, after a legal separation, you will no longer be actually residing with your U.S. citizen spouse, and therefore you will not be living in marital union with your U.S. citizen spouse.
However, USCIS notes that even if you and your U.S. citizen spouse continue to reside in the same household, but if the marital relationship has been altered by legal separation, you will not be considered to be living together in marital union.
According to USCIS, you are not living in a marital union with your U.S. citizen spouse during any period of time in which you and your citizen spouse are legally separated. If you are legally separated from your U.S. citizen spouse during the time period in which you must be living in a marital union, then you are not eligible to naturalize as the spouse of a U.S. citizen (three years after receiving your green card). However, you may still be able to naturalize based on five-year residence in the U.S.
What if I am Informally Separated?
In many instances, spouses may separate without obtaining a divorce or formalizing the separation. If you are informally separated from your U.S. citizen spouse, you may be eligible for naturalization, and your naturalization may be approved on a case-by-case basis.
There are several factors that are considered when the immigration officer is making the determination whether you are eligible for naturalization. The factors include:
- The length of separation;
- Whether you and your spouse continue to support each other and your children (if any) during the separation;
- Whether you and your spouse intend to separate permanently; and
- Whether you or your spouse become(s) involved in a relationship with others during separation.
According to USCIS, if you are no longer residing with your U.S. citizen spouse, that means you are not living in a marital union. However, if you and your U.S. citizen spouse continue to reside in the same household, an immigration officer must determine your eligibility for naturalization as the spouse of a U.S. citizen on a case-by-case basis. If the officer determines that there is “marital disunity,” your naturalization application may be denied.
What if I Am Involuntarily Separated?
If you are involuntarily separated while your naturalization application is pending, you may still be eligible for naturalization, and your naturalization application may be approved under limited circumstances. USCIS states that under very limited circumstances and when there is no indication of marital disunity, you, the applicant, may be able to demonstrate that you are living in marital union with your U.S. citizen spouse even though you do not actually reside with your U.S. citizen spouse.
You are eligible for naturalization without living in marital union, if the separation is due to circumstances beyond your control, such as:
- Service in the U.S. armed forces; or
- Required travel or relocation for employment.
Please note that USCIS does not consider incarceration during the time of required living in marital union to be an involuntary separation.
In in any case, it is important to honestly disclose your current marital status or circumstance. An impatience and hope that it will not be revealed can lead to dire consequences. If USCIS determines that you misinformed them or failed to disclose information about the current circumstances of your marriage, then the USCIS will not only deny your application for citizenship, but will decide that you lack good moral character thereby banning your eligibility for citizenship for the next five year. This mean that you will have to wait for five more years to be able to refile. Even if the circumstances changed the day before the interview, you need to inform the officer.
Hiring the most qualified and experienced immigration lawyer for your case is very important. It helps you avoid potential problems and to plan the best immigration strategy for you and your family. Over the many years of our practice, attorneys at I.S. Law Firm helped many immigrants to naturalize and become US citizens. To learn more about our services or to schedule a consultation, please contact us at (703) 527-1779 or via e-mail: [email protected].