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The Impact of Changes in Family Status on the Alien's Immigration Process
such as Divorce From, Death of, or Abuse by a USC or LPR Spouse
This information is provided in the most general of terms and is not intended to address any specific case. Please read the Terms of Service before continuing.
Part E ~ At the Permanent (10-Year) Resident Stage or At Naturalization Stage
The only effect divorce may have on an alien at this stage is that it may delay the alien in becoming eligible to apply for naturalization. If a permanent resident is married to a U.S. citizen, the shorter three-year residency and the 18 months substantial presence requirements for naturalization revert to the standard five-year residency and 30 month substantial presence requirement.
Q: I received a permanent (10 year) green card. Can a divorce adversely affect my status as a legal permanent resident?
A: No. Divorce does not adversely affect an alien's immigration status after the alien obtains permanent residence without conditions.
Q: I obtained permanent residence through marriage to a US citizen. We divorced after 2 years of marriage. Does this affect eligibility for US citizenship?
A: Yes. Now you must wait five years instead of three years after permanent residence was approved before you can apply for citizenship.
Q: I applied for citizenship and divorced while waiting for the interview. Will I still be eligible?
A: No, the alien must have been married to and residing with the U.S. citizen for at least three years to becoem eligible, and the marriage must be legally sustaining during the pendency of the application.
Q: I applied for citizenship and divorced while waiting for the interview. What should I do?
A: The alien no longer qualifies for early Naturalization under Section 319 of the INA. Resubmit according to the requirements under Section 316 of the INA.
Q: My US citizen husband and I divorced. Can I file for naturalization after 3 years of permanent residency based on my former marriage to a US citizen husband?
A: No, not after 3 years. Once the marital union ceases to exist, either prior to or subsequent to applying for naturalization under Section 319 of the INA, as in the case of divorce from the US citizen, the alien is no longer qualified to apply for naturalization at the 3-year mark. The alien can apply for naturalization, as specified in Section 316, after 5 years of permanent residency.
Q: What if I remarry a US citizen?
A: Still, the alien must have been married to a US citizen for 3 years, before becoming eligible under Section 319 of the INA. In the case of a remarriage to a US citizen, the alien will accrue 5 years of permanent residency becoming eligible for naturalization in accordance with the regulations specified inSection 316 of the Act, prior to the new marriage qualifying the alien under Section 319.
Q: What happens if I submitted my application for naturalization after 3 years of permanent residency while married to a US citizen, but we divorce afterwards?
A: Once the marital union ceases to exist, subsequent to applying for naturalization under Section 319 of the INA, as in the case of divorce from the US citizen, the alien is no longer qualified to apply for naturalization under this provision. The alien can apply for naturalization, as specified in Section 316, after 5 years of permanent residency.
If an alien applies under Section 319, but is divorced prior to adjudication of the application, as in when the alien attends the interview, the alien will no longer be married to and living with the US citizen spouse. Therefore, INS is prohibited by statute from approving an application under section 319. The alien should file a new application as soon as he or she has been LPR for 5 years. Applications can be made 90 days prior to acquiring the 5 years residency.
Q: What if I remarry a US citizen while the N400 is being processed, can I qualify with my new spouse ?
A: The alien will still not be eligible for naturalization at this time and under Section 319 of the INA as the marriage must be sustaining and of 3 years duration. The alien will become eligible again once he or she has accrued 5 years of permanent residency, provided other eligibility requirements are met.
Q: What if I separate from my US citizen spouse prior to submitting the N400?
A: According to the regulations any legal separation breaks the continuity of the marital union for purposes of Naturalization. However, whether an informal separation, as in living separately, will be sufficient to break the continuity of the marital union will be determined on a case-by-case basis. Essentially, if the adjudicator determines that the separation clearly indicates the dissolution of the marriage, then the alien will not qualify for Naturalization under Section 319(b) of the Act.
Q: My US citizen spouse is in the Military, and we are not living together. Does this mean I’m not eligible to file the N400 after 3 years of PR?
A: No. Involuntary separation, beyond an individual’s control such as serving in the Armed Forces for the USA does not preclude Naturalization. See Section 319.1 of the INA.
Q: I’ve been relocated for business purposes, and I am not living together with my US citizen spouse. Does this mean I’m not eligible to file the N400 after 3 years of PR?
A: No. Involuntary separation, such as relocation that becomes essential for business or occupation purposes does not preclude Naturalization.