N400 – Where to file if my spouse and I are living in different states?

[rjk_usa27 0]

Hi, I am a naturalized U.S Citizen, happily married for close to 4 years with a beautiful child. My wife has been a green card holder for 3 years and wants to apply for her citizenship. 6 months ago she moved to California because she got into pharmacy school while I stayed in Florida because of work. I visit her once a month and she comes down to Florida during breaks. After she is done with school, she will move back to Florida.

All our records are under the Florida address. Tax returns, bank accounts, licenses, child’s birth certificate, etc..

Should she file her N400 under the Florida address or California address? If she files under Florida, she will have to make a trip to Florida for, I believe, biometrics, interview and oath ceremony. Correct? She prefers to file in California. Is this ok?

[Dakine 26]

Hi, I am a naturalized U.S Citizen, happily married for close to 4 years with a beautiful child. My wife has been a green card holder for 3 years and wants to apply for her citizenship. 6 months ago she moved to California because she got into pharmacy school while I stayed in Florida because of work. I visit her once a month and she comes down to Florida during breaks. After she is done with school, she will move back to Florida.

All our records are under the Florida address. Tax returns, bank accounts, licenses, child’s birth certificate, etc..

Should she file her N400 under the Florida address or California address? If she files under Florida, she will have to make a trip to Florida for, I believe, biometrics, interview and oath ceremony. Correct? She prefers to file in California. Is this ok?

'USCIS can give you guys a TOUGH time at the interview if you don't live together. Gets down to her having not having the right to file in 3 years instead of 5 years if you are no longer together.

[moonhunt 1]

Hi, I am a naturalized U.S Citizen, happily married for close to 4 years with a beautiful child. My wife has been a green card holder for 3 years and wants to apply for her citizenship. 6 months ago she moved to California because she got into pharmacy school while I stayed in Florida because of work. I visit her once a month and she comes down to Florida during breaks. After she is done with school, she will move back to Florida.

All our records are under the Florida address. Tax returns, bank accounts, licenses, child’s birth certificate, etc..

Should she file her N400 under the Florida address or California address? If she files under Florida, she will have to make a trip to Florida for, I believe, biometrics, interview and oath ceremony. Correct? She prefers to file in California. Is this ok?

Florida will be much better.

Away from home because of school is considered as temporary, and she can still use Florida as primary residence.

Besides, since it is based on marriage, if she file at California, she has to prove that current marriage is bona-fide marriage, and USCIS will give hard time during the interview.

I think traveling back to Florida will save those troubles even though it may cost for air-fare.

Don't give the excuse to USCIS that they can spot something suspicious.

Eventually it will cause additional expense from financial viewpoint and extra time.

[Stella08 0]

On the N-400 she has to fill in all the places where she lived, worked and went to school in the last five years. Could she explain how she can attend a school in California while living in Florida (e.g. online courses)? I wonder if she would have to take a letter from school to the interview to support her information.

How much longer is her school? If it's not too long, I would consider waiting to file until she's finished and moving back to Florida. Is there any reason why she needs to apply for Citizenship right now? I know, it's a nice thing to have. But her greencard should be valid for several more years. So if there's no urgent reason why she nees citizenship ASAP, I would wait. You don't want to give false information on your application which might trigger some questions with USCIS.

[broma25 2]

Why not just wait until she is finished with school and back in Florida....no problems then either proving bona fide marriage or with extra expenses.

[rjk_usa27 0]

Florida will be much better.

Away from home because of school is considered as temporary, and she can still use Florida as primary residence.

Besides, since it is based on marriage, if she file at California, she has to prove that current marriage is bona-fide marriage, and USCIS will give hard time during the interview.

I think traveling back to Florida will save those troubles even though it may cost for air-fare.

Don't give the excuse to USCIS that they can spot something suspicious.

Eventually it will cause additional expense from financial viewpoint and extra time.

On the application I have to list all the employers and schools she attended so I can't lie about her not attending school in california but not living there.

How about if she files in California? How will they even know we are not living together? How will the USCIS prove that I am not living with her in California?

[manty 0]

Don't give the excuse to USCIS that they can spot something suspicious.

I agree. It sounds suspicious, even if it isn't.

What's the rush? Why not wait until she has finished school? Unless there's a compelling reason to apply right now, you should wait. Spouses living apart (and basically living separate lives, seeing each other once a month) looks like immigration fraud.

Here's why (and don't take the following as a criticism of your life - just think of it as a list of questions and concerns that will be written all over your application and that will stand out as very unusual)

"Normal" US marriages (if there is such a thing) are often "give and take" - one spouse typically doesn't run off across the continent to attend pharmacy school, particularly not with a child involved. There's pharmacy schools in almost every state - what was wrong with a school in Florida? What was wrong with you moving to CA to work? What was wrong with her waiting out a year if she didn't get into a Florida school this particular academic year?

Who watches the child? Is the child merely a piece of "evidence" to bolster a pretend marriage? Bringing kids up with two parents is more important than a pharmacy degree, aren't they? Is the child your natural child, or is it a child that one parent brought to the marriage?

Have you both always lived apart? What other evidence is there that you are a bona fide couple? Do you also have separate finances? Are your Florida and California residences in both of your names, or are they owned/leased individually? What are her plans following graduation - can she come back to Florida to work, or will her degree only permit her to work in California? Are you helping to pay for her college?

Remember that all of these issues will simply disappear in a couple of years when she is finished with school and you are back together. So really, is there any need to rush through the process if it's not absolutely necessary? (I can see only two instances where it would be necessary - an upcoming presidential election, or if she needed to take a position with the federal government.)

Sure, you can apply now, but is it the smart thing to do? Why apply when there's so many questions that will be raised?

[MoroccanInTexas 24]

Florida will be much better.

Away from home because of school is considered as temporary, and she can still use Florida as primary residence.

Besides, since it is based on marriage, if she file at California, she has to prove that current marriage is bona-fide marriage, and USCIS will give hard time during the interview.

I think traveling back to Florida will save those troubles even though it may cost for air-fare.

Don't give the excuse to USCIS that they can spot something suspicious.

Eventually it will cause additional expense from financial viewpoint and extra time.

On the application I have to list all the employers and schools she attended so I can't lie about her not attending school in california but not living there.

How about if she files in California? How will they even know we are not living together? How will the USCIS prove that I am not living with her in California?

Trust me they will find out, and then it is going to be a BIG RED FLAG. Since this is marriage based, they will ask for supporting documents, common bills, bank accounts, health insurance, and so on. They will also run a background check on her...

A piece of advice: Do not miss around with the USCIS

Edited January 7, 2009 by MoroccanInTexas

[moonhunt 1]

Florida will be much better.

Away from home because of school is considered as temporary, and she can still use Florida as primary residence.

Besides, since it is based on marriage, if she file at California, she has to prove that current marriage is bona-fide marriage, and USCIS will give hard time during the interview.

I think traveling back to Florida will save those troubles even though it may cost for air-fare.

Don't give the excuse to USCIS that they can spot something suspicious.

Eventually it will cause additional expense from financial viewpoint and extra time.

On the application I have to list all the employers and schools she attended so I can't lie about her not attending school in california but not living there.

How about if she files in California? How will they even know we are not living together? How will the USCIS prove that I am not living with her in California?

She still keeps her driver license in FL address, right ?

Attending the school in other state may not be considered as residence.

If she wants to apply N400 in California, she needs to prove the residence record.

Such as utility bills, insurance proof, tax return copy and others.

If she is staying there in dorm or temporary residence, it may not be easier to prove those.

If you don't live there, you can not file from there.

I believe seasonal leaving or temporary leaving such as school attendance may not be considered as living there from tax and insurance purpose.

How can they find you are not living together ?

Because they will ask a lot of documents for proving your marriage since it is marriage.

Also if they check previous case record, they will find out the address you put for I-130.

From W-2 copy or something else, if they will catch it, it will not end just with N400 denial.

They may go ahead to cancel her green card since it is doubtful marriage considered as immigration fraud.

If you want to turn down their decision, it will be a lot more headache, additional cost/time.

But since she is adult, USCIS may see why she is attending in CA instead of FL.

As manty mentioned, it may catch some caution by USCIS employee since it is unusual.

Probably it will be better to wait for her school graduation, then wait for another or two years after joining together.

If she wants to file N400 now, you better to consult with attorney to see whether her domicile is considered as FL or not.

Don't think everything as your convenience.

Government, especially USCIS, think it different way, and if it goes wrong, it may be well beyond your control.

Edited January 7, 2009 by moonhunt

[AusCal 3]

Florida will be much better.

Away from home because of school is considered as temporary, and she can still use Florida as primary residence.

Besides, since it is based on marriage, if she file at California, she has to prove that current marriage is bona-fide marriage, and USCIS will give hard time during the interview.

I think traveling back to Florida will save those troubles even though it may cost for air-fare.

Don't give the excuse to USCIS that they can spot something suspicious.

Eventually it will cause additional expense from financial viewpoint and extra time.

On the application I have to list all the employers and schools she attended so I can't lie about her not attending school in california but not living there.

How about if she files in California? How will they even know we are not living together? How will the USCIS prove that I am not living with her in California?

She still keeps her driver license in FL address, right ?

Attending the school in other state may not be considered as residence.

If she wants to apply N400 in California, she needs to prove the residence record.

Such as utility bills, insurance proof, tax return copy and others.

If she is staying there in dorm or temporary residence, it may not be easier to prove those.

If you don't live there, you can not file from there.

I believe seasonal leaving or temporary leaving such as school attendance may not be considered as living there from tax and insurance purpose.

How can they find you are not living together ?

Because they will ask a lot of documents for proving your marriage since it is marriage.

Also if they check previous case record, they will find out the address you put for I-130.

From W-2 copy or something else, if they will catch it, it will not end just with N400 denial.

They may go ahead to cancel her green card since it is doubtful marriage considered as immigration fraud.

If you want to turn down their decision, it will be a lot more headache, additional cost/time.

But since she is adult, USCIS may see why she is attending in CA instead of FL.

As manty mentioned, it may catch some caution by USCIS employee since it is unusual.

Probably it will be better to wait for her school graduation, then wait for another or two years after joining together.

If she wants to file N400 now, you better to consult with attorney to see whether her domicile is considered as FL or not.

Don't think everything as your convenience.

Government, especially USCIS, think it different way, and if it goes wrong, it may be well beyond your control.

All good advice from Moonhunt.

To answer the original question,simply,

If her residence is considered Florida, then she is eligible to file, but must file on Florida, and yes, must return to Florida for biometric, interview & oath.

If her residence is California, she is not eligible to file yet, as you cannot be considered living together.

[lucyrich 20]

Note that there are two issues here.

First, is your marriage bona fide even though you're living separately? I'm not suggesting that it isn't, but the USCIS agent might see it differently, and it will be up to you to prove that the marriage is bona fide and not for the purposes of obtaining an immigration benefit.

Second, assuming the marriage is bona fide, does your living arrangement meet the requirement to live in marital union with the spouse, as described in INA 319 a, and further in 8 CFR 319.1

(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.

The link to interpretations on the USCIS site seems to be broken right now, but there used to be language there saying something to the effect that the 3 years living together in marital union should be given a fairly narrow interpretation, in order for the alien spouse to absorb citizenship concepts by living in the same household with the US Citizen spouse.

If you wait until the alien has held the green card for five years (less 90 days), then the naturalization can be filed without worrying about the requirement to live together in marital union per 319.1.

[lucyrich 20]

I found the link to USCIS interpretations:

http://www.uscis.gov/propub/ProPubVAP.jsp?...8cb30990ad4051e

(2) Marital union for purposes of section 319(a) . The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse.

A two-week separation during the requisite period has been held not to affect eligibility when the separation was ordered by a court as a cooling-off period following the husband's arrest for assaulting the wife. A similar brief cooling-off period not court ordered, but which could not reasonably be regarded as adversely affecting the objective of the requirement as interpreted in Kostas , also does not affect eligibility.

Another petition, involving parties who had been reconciled after a few brief separations, was granted even though a subsequent separation of two-and-one-half months immediately prior to the petition-filing prompted the petitioner to file a divorce complaint, which remained pending at the time the petition was finally heard. In granting the petition, the court noted that reconciliations had invariably followed the earlier separations; that the divorce proceeding had remained inactive; that two-and-one-half months out of a five-and-one-half-year marriage was a relatively short period of separation; and that, during such period, the citizen husband continued to support the petitioner, and both claimed not to have intended a permanent separation. The court stated that these facts resembled those in the Omar case, the implication being that, as in Omar, the separation of the parties had been a temporary cooling-off period, rather than complete and permanent. While the Service has recognized and will continue to apply the rationale of Omar, the decision in Olan in not to be regarded as a norm for determining what facts will bring a case within the scope of the Omar ruling. Moreover, since the Olan case was decided upon the Omar principle early in the decision, the court's subsequent gratuitous interpretation of the phrase "in marital union," which equated such phrase with the mere existence of the marital status, is regarded as dicta and shall not be followed by the Service.

It is the further position of the Service that, where a petitioner and spouse do not live apart by choice, or because of a legal separation or marital difficulties, but solely as a result of circumstances beyond their control, such as service in the armed forces of the United States or essential business or occupational demands, such separation -- ­even when prolonged­ -- does not preclude naturalization under this section.

It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period.

The next to last paragraph seems to offer a lot of hope, but the first and last paragraphs tend to suggest there could be trouble. I don't know how an adjudicator would rule, but if you intend to push through and file for naturalization, I'd have a printout of that interpretation with you at the interview, with the next-to-last paragraph highlighted, along with an explanation of where it came from.

[rjk_usa27 0]

Our marriage is bona-fide marriage. The only reason why she went to california for school is because she had no other choice. She has a bachelors degree in Pharmacy from India which is not valid in the U.S. There are only 2 pharmacy schools in the U.S that has a program for foreign pharmacists to convert their degree to PharmD. The rest of the PharmD programs are 4 years while this is year and half. She had no other choice. The only reason I haven't moved with her is because I haven't been able to find a decent job there. All our documents are clean.

USCIS document does say "essential business or occupational demands, such separation-- even when prolonged -- does not preclude naturalization under this section"

Based on this interpretation, I thinking it is ok for our situation. I am still confused as to where I should file.

I found the link to USCIS interpretations:

http://www.uscis.gov/propub/ProPubVAP.jsp?...8cb30990ad4051e

It is the further position of the Service that, where a petitioner and spouse do not live apart by choice, or because of a legal separation or marital difficulties, but solely as a result of circumstances beyond their control, such as service in the armed forces of the United States or essential business or occupational demands, such separation -- ­even when prolonged­ -- does not preclude naturalization under this section.

It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period.

The next to last paragraph seems to offer a lot of hope, but the first and last paragraphs tend to suggest there could be trouble. I don't know how an adjudicator would rule, but if you intend to push through and file for naturalization, I'd have a printout of that interpretation with you at the interview, with the next-to-last paragraph highlighted, along with an explanation of where it came from.

[manty 0]

rjk_usa27 - I think the thing that most of us don't understand is the need to file immediately while the facts surrounding this case are unusual. Is there a reason why this can't wait a year or two until you are back with your wife and living in the same place?

[mawilson 2,133]

USCIS can give you guys a TOUGH time at the interview if you don't live together. Gets down to her having not having the right to file in 3 years instead of 5 years if you are no longer together.

What interview? There's no USCIS requirement that you live together with your wife

after the filing of the N-400.