What if U.S. Husband/Wife is in JAIL???

[peruvianfamily 0]

Hello, I have a random question for a local case around here. What if your American Husband/Wife is in Jail by the time that your eligible to file your N400? Are you still eligible under naturalization based on marriage?

I have my personal opinion but I know that there's a lot of wise VJ's around there. So, what do u think?

[Penguin_ie 5,996]

I would say no, because you do not live together.

[moonhunt 1]

Hello, I have a random question for a local case around here. What if your American Husband/Wife is in Jail by the time that your eligible to file your N400? Are you still eligible under naturalization based on marriage?

I have my personal opinion but I know that there's a lot of wise VJ's around there. So, what do u think?

Probably yes.

Even though they are not living together, but it can be considered as extreme case if everything else looks good.

N400 is strictly focus on individual's record.

N400 applicant may not meet the condition for living together, but it is beyond his/her control.

It may be similar to the situation that US citizen was ordered to other country for combat situation, and the spouse may have to stay in U.S.

Not the same, but it is similar because both situation will not give any choice for the spouse.

But again, it may be depending on details, which may be varied from the case to the case.

[lucyrich 20]

Time to bring out the interpretations of 319.1, as found on the USCIS page:

Although section 319(a), as distinguished from sections 319(b) and (d), further requires that the petitioner shall live in marital union with the citizen spouse during the entire period of three years immediately preceding the date of his petition, no similar requirement exists for the period between the date of filing the petition for naturalization and the date of naturalization, during which period only the existence of a legally valid marriage is required.

To me, the phrase in bold seems to strongly suggest that, if the incarceration happens after filing but before the oath, it's not a problem. But if it happens before filing...

(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.

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.

Now, is the incarceration due to "circumstances beyond their control"? I'd argue that it isn't, but others might argue the opposite. In the US, you're supposed to be able to avoid incarceration by avoiding illegal behavior. Certainly incarceration isn't "service in the armed forces of the United States or essential business or occupational demands".

The first and last paragraphs quoted in that block above might suggest that it could depend on the amount of time the couple was separated due to incarceration. If they never lived together, or lived together only a very short time, I'd suspect it would be less likely to be judged as valid. But if they spent almost the entire three years living together in valid marital union, and were only interrupted for a short period by the incarceration, it might be argued to be valid.

But I really don't know how they'd rule, and I've never heard of such a case actually being tested.

[NickD 203]

Time to bring out the interpretations of 319.1, as found on the USCIS page:

Although section 319(a), as distinguished from sections 319(B) and (d), further requires that the petitioner shall live in marital union with the citizen spouse during the entire period of three years immediately preceding the date of his petition, no similar requirement exists for the period between the date of filing the petition for naturalization and the date of naturalization, during which period only the existence of a legally valid marriage is required.

To me, the phrase in bold seems to strongly suggest that, if the incarceration happens after filing but before the oath, it's not a problem. But if it happens before filing...

(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.

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.

Now, is the incarceration due to "circumstances beyond their control"? I'd argue that it isn't, but others might argue the opposite. In the US, you're supposed to be able to avoid incarceration by avoiding illegal behavior. Certainly incarceration isn't "service in the armed forces of the United States or essential business or occupational demands".

The first and last paragraphs quoted in that block above might suggest that it could depend on the amount of time the couple was separated due to incarceration. If they never lived together, or lived together only a very short time, I'd suspect it would be less likely to be judged as valid. But if they spent almost the entire three years living together in valid marital union, and were only interrupted for a short period by the incarceration, it might be argued to be valid.

But I really don't know how they'd rule, and I've never heard of such a case actually being tested.

Jail or prison? When one thinks of jail, normally a very short sentence like sleeping off a drunk for 24 hours where prison could be ten consecutive life terms. Would think the length of the sentence would be a factor in a determination. Another good question would be, what happens if your spouse dies between your interview and oath ceremony, they do ask that question.

After that I-751 fiasco, was a certain amount of security in my wife getting that ten year card, we could have easily waited another two years. At the same time, had a battle with her home country trying to get her foreign passport renewed, why do you want a Venezuelan passport when you are living here? Certainly puts you in an awkward position but they did renew it so we were set. And carrying that green card became a part of her life. Let's just get it over with. We also had a battle with the DMV in renewing her driver's license, but won that one as well that is good for eight years and her employer said, you are good for another ten years.

Applying for USC without a rest was another fiasco that also puts you in a state of limbo when your oath letter is lost, if my crystal ball was working to foresee all this, more than likely would have waited those two years, just to get a badly needed break from the USCIS. Just had to remember to file the moving form in case we moved.

With questions like yours, would probably get as many different answers as the people you ask this same question of, but feel the length of that sentence would be a strong factor.

[moonhunt 1]

Now, is the incarceration due to "circumstances beyond their control"? I'd argue that it isn't, but others might argue the opposite. In the US, you're supposed to be able to avoid incarceration by avoiding illegal behavior. Certainly incarceration isn't "service in the armed forces of the United States or essential business or occupational demands".

The first and last paragraphs quoted in that block above might suggest that it could depend on the amount of time the couple was separated due to incarceration. If they never lived together, or lived together only a very short time, I'd suspect it would be less likely to be judged as valid. But if they spent almost the entire three years living together in valid marital union, and were only interrupted for a short period by the incarceration, it might be argued to be valid.

But I really don't know how they'd rule, and I've never heard of such a case actually being tested.

Good job, lucyrich

I think it is necessary to bring experienced immigration attorney.

If it is immigrant, who commited crime or something like that, I would say No.

But if it is US citizen's fault, it is considered as "beyond the control" by immigrant.

That's why I think there is a chance.

I guess it will be depending on how you represent your situation with strong logic behind it.

Otherwise, wait for 2 more years, and file as 5 year residency basis.

USCIS will still check the marriage relationship, but they may see it a little differently.

Probably visiting record for US citizen may help a little bit.

[Jasman0717 9]

Depending on what they are in jail for they could be candidates for deportation.

[jasminelily 1]

Depending on what they are in jail for they could be candidates for deportation.

huh? So USC spouse goes to jail/prison and they'd deport the LPR other half? It's not the LPR who commited the crime. Did he/she? Does that make sense? Anybody?

[peruvianfamily 0]

Depending on what they are in jail for they could be candidates for deportation.

huh? So USC spouse goes to jail/prison and they'd deport the LPR other half? It's not the LPR who commited the crime. Did he/she? Does that make sense? Anybody?

Hi all, thanks for the Feedback so far, but the question is not if the beneficiary (inmigrant) is going to get deport for the U.S. Husband/Wife fault. Is about filling the petion for Naturalization, 'cause they still get married, utility bills still coming to the same address that they filled taxes for the last 3 years and they still together, not physicall but emotional (physicall yes if you count the visits).

[lucyrich 20]

Another good question would be, what happens if your spouse dies between your interview and oath ceremony, they do ask that question.

There are published cases where that issue has been tested. If the USC spouse dies at any time before the alien takes the oath, then the alien is ineligible to naturalize under the "three years married to and living with a USC" shortcut. It's sad, because the alien is not at fault and is facing a tragedy compounded by a bureacracy, but the law is clear on that point.

But if it is US citizen's fault, it is considered as "beyond the control" by immigrant.

That's why I think there is a chance.

Perhaps. But if the US Citizen deserts the alien spouse and runs away to hide somewhere in the wilderness, or to a country where the alien can't get a visa to enter, that might be circumstances beyond the alien's control, but it would break the "living together in valid marital union" bit. I think when that regulation says "beyond their control", it's talking about beyond the control of either party. But I might be wrong.

Depending on what they are in jail for they could be candidates for deportation.

huh? So USC spouse goes to jail/prison and they'd deport the LPR other half? It's not the LPR who commited the crime. Did he/she? Does that make sense? Anybody?

The US Criminal justice system won't convict the alien spouse of a crime unless there's proof beyond a reasonable doubt that the alien did in fact commit the crime. We don't jail people for the crimes of their spouses.

On the other hand, in immigration matters, when an alien is applying for an immigration benefit, the alien has the burden of proof. And in order to naturalize, the alien must prove he/she is of "good moral character". It's not hard to imagine circumstances where it looks like the alien was involved in the crime, but the details are muddy enough such that a prosecuting attorney would find it difficult to sustain the burden of proof beyond a reasonable doubt against the alien, but the alien would also find it difficult to sustain the burden of proof via a preponderance of the evidence that the alien is of good moral character.

That's still not the same as saying the alien is deportable. The possible reasons for deportation are listed in INA 237. Most of them require a criminal conviction to be considered deportable. And that criminal conviction requires proof beyond a reasonable doubt against the alien. But there are a few things that can lead to deportation without a criminal conviction. For example: Any alien who has engaged, is engaged, or at any time after admission engages in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, or any other criminal activity which endangers public safety or national security is deportable.

If the facts suggest the alien engaged in "criminal activity which endangers public safety" (which could include a whole lot of things), the alien won't necessarily be saved from deportation just because the DA decided there wasn't quite enough evidence to prosecute the alien in criminal court.

But the USC spouse's crimes, by themselves, won't lead to the alien's deportation. There would have to be evidence that the alien did something wrong, other than just having bad judgement in choosing a spouse.

[Jasman0717 9]

Depending on what they are in jail for they could be candidates for deportation.

huh? So USC spouse goes to jail/prison and they'd deport the LPR other half? It's not the LPR who commited the crime. Did he/she? Does that make sense? Anybody?

Oophs, my bad, didn't see the 'American' part.

[diadromous mermaid 36]

I'd be inclined to say that the alien would be eligible to file. Divorce and death end the marital union. Incarceration of the USC spouse does not. In fact, even in cases of physical separation the AO has the discretion to make a determination as to the alien's eligibility.

Another good question would be, what happens if your spouse dies between your interview and oath ceremony, they do ask that question.

There are published cases where that issue has been tested. If the USC spouse dies at any time before the alien takes the oath, then the alien is ineligible to naturalize under the "three years married to and living with a USC" shortcut. It's sad, because the alien is not at fault and is facing a tragedy compounded by a bureacracy, but the law is clear on that point.

But if it is US citizen's fault, it is considered as "beyond the control" by immigrant.

That's why I think there is a chance.

Perhaps. But if the US Citizen deserts the alien spouse and runs away to hide somewhere in the wilderness, or to a country where the alien can't get a visa to enter, that might be circumstances beyond the alien's control, but it would break the "living together in valid marital union" bit. I think when that regulation says "beyond their control", it's talking about beyond the control of either party. But I might be wrong.

Depending on what they are in jail for they could be candidates for deportation.

huh? So USC spouse goes to jail/prison and they'd deport the LPR other half? It's not the LPR who commited the crime. Did he/she? Does that make sense? Anybody?

The US Criminal justice system won't convict the alien spouse of a crime unless there's proof beyond a reasonable doubt that the alien did in fact commit the crime. We don't jail people for the crimes of their spouses.

On the other hand, in immigration matters, when an alien is applying for an immigration benefit, the alien has the burden of proof. And in order to naturalize, the alien must prove he/she is of "good moral character". It's not hard to imagine circumstances where it looks like the alien was involved in the crime, but the details are muddy enough such that a prosecuting attorney would find it difficult to sustain the burden of proof beyond a reasonable doubt against the alien, but the alien would also find it difficult to sustain the burden of proof via a preponderance of the evidence that the alien is of good moral character.

That's still not the same as saying the alien is deportable. The possible reasons for deportation are listed in INA 237. Most of them require a criminal conviction to be considered deportable. And that criminal conviction requires proof beyond a reasonable doubt against the alien. But there are a few things that can lead to deportation without a criminal conviction. For example: Any alien who has engaged, is engaged, or at any time after admission engages in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information, or any other criminal activity which endangers public safety or national security is deportable.

If the facts suggest the alien engaged in "criminal activity which endangers public safety" (which could include a whole lot of things), the alien won't necessarily be saved from deportation just because the DA decided there wasn't quite enough evidence to prosecute the alien in criminal court.

But the USC spouse's crimes, by themselves, won't lead to the alien's deportation. There would have to be evidence that the alien did something wrong, other than just having bad judgement in choosing a spouse.