N-400 not adjudicated since I-751 still pending... What to do now ?

[Junster 0]

Hello,

I just had my N-400 interview in Tampa District Office while my I-751 is still pending at the same office. The officer asked about my wife, who unfortunately ended up in prison few weeks ago, so I told her "My wife is not available because I wasn't told to bring her and she had a schedule conflict" without revealing the information that she's in jail. IO said she cannot adjudicate my I-751 without my wife's presence and did not even ask for any joint documents and said we need to reschedule another interview for I-751 adjudication. She then went ahead with the citizenship test which I passed rightly. Then she went over the N-400 application and verified all the information and had me sign passport size photographs then sign the last two parts of the N400 form... Part 13. Signature at interview and Part 14. Oath of Allegiance.

And then I was handed the N-652 form saying "A decision cannot yet be made about your application" and the officer said USCIS will reschedule another interview for I-751 for both me and my wife and I'll be getting a notice in the near future. Now, what am I supposed to make out of all this ? I know I passed the naturalization test but I'm afraid if they reschedule me for I-751 interview with my wife and my wife is not likely to be out of prison in a long time as she has a trial hearing coming coming up on July 2nd and she's going to be sentenced for an extended period of time as per her attorney, so what choice do I have in this situation ?

Seeing how the DO in Tampa is treating the case (the spouse requirement for interview is a must) and realizing my wife won't be out before the the next rescheduled interview on whatever date, I'm afraid that even if I have to go the rescheduled interview alone again and explain to IO the whole situation about why my wife is not available, the Tampa DO wouldn't approve the case and give me another resecheduled date which would be a matter of few more months again as the DO case timeline suggests. I wonder it's going to take forever then.

I'm afraid but starting to think that divorcing her and then refiling for I-751 requesting a waiver with all the evidences of bona fide marriage would be a better and safer option. The thought of separating ways and getting divorced came in my mind earlier, but couldn't make a decision since both my I-751 and N-400 were pending (which still are, as of today, ironically). In fact, I already spoke today to a legal professional who has 30 years of experience and she echoed my idea of refiling the I-751 right after I finalize the divorce with my wife. My spouse and I have been talking about getting separated for months and she apparently has no problem with getting divorced, so that would speed the process of refiling I-751.

Is divorcing my wife and refiling for I-751 a solution rather than waiting for uncertainty of my wife's future and my case's postponement ? Please help and advise !

[NickD 203]

Never read a post like this before, but with the proof we had to provide that my wife and I were living together for the N-400, I don't see how you can get the certificate if your wife is in prison under the marriage 3 year privilege.

Would be a lot more concerned about staying here legally for now and going for the five year USC where marriage is not required nor the proof to go along with it. Would be far more concerned about getting a I-551 stamp in your current valid foreign passport book, or bringing in two passport photos for a I-94 extension, you have to remain legal here.

Definitely would get a good attorney, they have means of getting court records about your wife's predicament that you will need as proof for your I-751, don't recall a check box for a spouse being in prison on that form. Your main concern at this point is proving you didn't marry your wife to gain access to this country or marriage fraud as the USCIS loves to call it and get that ten year card. You can get your USC later.

[jsnearline 2]

The OP would not be able to naturalize under the three year rule even if they had their 10 year card already because they are not living with their spouse.

I would think withholding information about a spouse being in prison from a USCIS IO during an interview could come dangerously close to immigration fraud. (i.e. hding the fact that you are not living together in the hopes of naturalizing under the three year rule).

Edited May 29, 2009 by jsnearline

[Junster 0]

Thank you for the responses !

FYI, my wife only got arrested this month and her trial is coming on July 2nd. We got married on May 2005 and have been living together in the same house for past 4 years, so that does have all the establishment and proof for me filing for I-751 and N-400 subsequently. So the question of me and my wife not living together doesn't even arise because she's been with me just till couple weeks ago, although the marriage was on the rocks and we talked about divorce and separation earlier, but as of today, we're still legally married and living under the same roof. (Apart from the fact of course, that my wife is in jail at this moment and will be sentenced for next one year or two.)

And as for my status, the interviewing officer told me just because they are holding the naturalization because of I-751 yet to be adjudicated, it has nothing to do with my status as I'm still a conditional resident with status of my extension notice waiting for removal of condition approval with recheduled interview coming. So no need to worry about I-551 or I-94 or whatever documents you mentioned.

I just came back from attorney's office now and as my attorney suggested me, my wife and I can file for divorce and when it becomes final, I can re-file for I-751 with the waiver of joint spouse and and my current N-400 application will be cancelled. In the process, my re-filed I-751 will be approved in due time and I can file 2 years from now for naturalization.

So the situation is taken care of already and the final outcome of the divorce when it happens will make things positive.

Edited May 29, 2009 by Junster