Applying for citizenship while married but living separately

[esimon 0]

First of all, I would like to thank everyone contributing on this forums. Advices I have read on these forums have really helped me during my green card process.

I have finally obtained my 10 year green card through marriage to a U.S citizen. I am eligible to apply for citizenship in 10 months under the category of being married for 3 years. Although I am still happily married with my wife we don't live together. This is due to the fact that my wife was laid off from work and she found a new job in a different city and state two hours away from where I currently live. We have been living separately for almost a year now but we usually meet on the weekends and for vacations. We are still working on arranging job situations so that we can start living together again.

My question is, based on our living condition, Am I still eligible to apply for citizenship ?

I understand I need to consult a lawyer to discuss this matter as well but I just want to know the general consensus on this forums and also if there is anyone who have been in a similar situation like me and what action they were able to take.

Thanks in advance

Cheers!

[Old Dominion 26]

You are OK to file for citizenship. In this economy, lots more couples are "separated" for job reasons. Why is a lawyer needed?

[imaisha 0]

actually i think you're not ok to apply for citizenship. according to the N-400 instructions you must have been married to and living with your american spouse for the last three years. you can find this on page 1 under who may file here: http://www.uscis.gov/files/form/N-400ins.pdf

you'll still be eligible to apply as a regular permanent resident after five years though.

[motu 5]

You are OK to file for citizenship. In this economy, lots more couples are "separated" for job reasons. Why is a lawyer needed?

I disagree. You are not living together - just living together a fraction of the time. If they see two different addresses - one for you and one for your wife - that shows you are not living together. If you claim that you are living together and do not show the two different addresses - you are lying - even if the lawyer tells you to do it- don't. You can just wait two years to apply for citizenship - why is it so critical? Why can't you wait? Good Luck with you financial situation and married life, citizenship is minor.

[Sylvia_n_Joseph 3]

It might hinge on being able to PROVE you two are together frequently ( as in every weekend or so ) That you are separated for the work week only.

[jsnearline 2]

If I were you, I'd make an InfoPass with your local USCIS office, explain the situation, and see what they say.

Edited May 17, 2009 by jsnearline

[jsnearline 2]

From a personal standpoint, you might want to consider waiting to file until things settle down a bit.

I lost my job in November, but my wife applied at the end of March. Now, I have several job prospects, but they're all out of state. So, now I may have to choose between delaying my wife's citizenship application for awhile (or risking it getting lost altogether) or turning out opportunities to move until the local office here processes her case. Neither option is very palatable to me.

[JERIII 8]

You are OK to file for citizenship. In this economy, lots more couples are "separated" for job reasons. Why is a lawyer needed?

I disagree. You are not living together - just living together a fraction of the time. If they see two different addresses - one for you and one for your wife - that shows you are not living together. If you claim that you are living together and do not show the two different addresses - you are lying - even if the lawyer tells you to do it- don't. You can just wait two years to apply for citizenship - why is it so critical? Why can't you wait? Good Luck with you financial situation and married life, citizenship is minor.

The law on this question is the following:

(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:

...

(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;

...

(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.

Notice that the law does not actually say "living with" or "living together" it says "living in marital union with." The text of the law makes clear that the informal reading is misleading. I would say that as long as you are honest with USCIS, the outcome is likely to be fine, but I am not a lawyer.

[jsnearline 2]

Thanks for posting what the law says. The law does state that marital union requires the spouses to reside together, but the bolded part makes clear that exceptions can be made where the separation is not a voluntary or legal one.

Edited May 18, 2009 by jsnearline

[lucyrich 20]

JERIII posted the appropriate regulation, from 8 CFR 319. In addition, the published interpretations shed some light on the matter:

(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.

I think you're probably OK, based on the next-to-last paragraph above, and the similar language in 8 CFR. But you're at least venturing near a grey area. Be prepared to demonstrate that the reason for your separation is really something beyond your control, such as essential business or occupational demands. If they want to get too picky, they may question how "essential" the separation is. Are you putting career above marriage? How unthinkable would the consequences be if one of you changed jobs (or went without employment) in order that the two of you could live together in the same city? I certainly don't need to know the answer, but don't be shocked if one of the officers starts asking questions along those lines.

[Peace be still 6]

First of all, I would like to thank everyone contributing on this forums. Advices I have read on these forums have really helped me during my green card process.

I have finally obtained my 10 year green card through marriage to a U.S citizen. I am eligible to apply for citizenship in 10 months under the category of being married for 3 years. Although I am still happily married with my wife we don't live together. This is due to the fact that my wife was laid off from work and she found a new job in a different city and state two hours away from where I currently live. We have been living separately for almost a year now but we usually meet on the weekends and for vacations. We are still working on arranging job situations so that we can start living together again.

My question is, based on our living condition, Am I still eligible to apply for citizenship ?

I understand I need to consult a lawyer to discuss this matter as well but I just want to know the general consensus on this forums and also if there is anyone who have been in a similar situation like me and what action they were able to take.

Thanks in advance

Cheers!

The heck with your citizenship. You should be wondering how you need to get your family under the same house hold. Your priorities need to be with family first then citizenship. You spend weekends and vacations with your wife. What the heck kind of relationship is that? If my husband ever get his priorities messed up I would send his buns on the first thing packing, and I darn sure would not look back........

[Peace be still 6]

You are OK to file for citizenship. In this economy, lots more couples are "separated" for job reasons. Why is a lawyer needed?

Why do you think he needs a lawyer?

[reeses16 8]

Esimon. Living apart from your wife will not be a problem when you apply for Citizenship (See JERIII's post, part C "occupational demands"). However, you do need to provide an explanation and evidence. Please review the N-400 instructions and application There is a separate section for you to list your spouses address, simply provide her correct address in the other state in this spot. Next to her address write "please see explanation". In a short letter explain that you were separate due to occupational reasons as a result of a layoff, then list your evidence. Examples include chronologically listing items such as layoff notification, and unemployment records, perhaps dated e-mail communication about your wife's job interview & acceptance of the position, a copy of her lease (the date on the lease will show that she did not move until AFTER she had secured employment). And then I would include evidence of continuing relationship, cell phone records, e-mails. Also, ask JERIII for the source of the regulations he posted. You should include a copy of this directly behind you explanation. Assume its the adjusticators first day of work.

Best of luck, just be sure to send an explanation with evidence and make extra copies of everything for yourself.

[reeses16 8]

"Voluntary or Legal Separation" refers to couples who are having problems and decide the best solution is to separate due to martial problem with or without a legal separation. Clearly this does not apply to the OP. He and his wife are still happily married, but living apart due to job opportunities.

Emison, I'm sure its not easy being apart. Please do not be discouraged by the separation in regards to your immigration benefits or you relationship. It is not unheard for married couples live apart due to work.

[jsnearline 2]

Hey Muslimlady 37. Perhaps you haven't heard, but there is a RECESSION going on right now. Some couples are forced to live and work apart from each other to make ends meet.

The OP says his wife was LAID OFF. It doesn't sound like her first choice was to move away from him.