Naturalization Based on Marriage - Living Apart

[JayCeeEn 0]

Married: April 2007

Received Green Card (1 year): November 2007

Filed Removal of Conditional Status: August 2009

Removal of Conditional Status - Approved!: September 2009

Received Green Card (10 years): October 2009

Current Location: Southern California

Ideally, I should be able to submit my application for Naturalization as early as August 2010.

I was reviewing the N-400 Application form, in Part 2. Information About Your Eligibility, the correct and true choice for me would be that I have been a lawful permanent resident of the United States for at least three years, and I have been married to and living with the same U.S. citizen for the last three years, and my spouse has been a U.S. citizen for the last three years.

My husband and I have been planning to move to Northern California for the longest time because we have our family and friends there. I was offered a job there and will be moving soon. I will be staying with relatives first and hopefully find our own place. Once everything is settled, he can then follow. For how long this would take, I do not know. I am praying all will work out well ASAP. My husband is currently employed and we of course want to keep his job until the right time comes for him to join me. So during this transition, "technically" we will not be living together, physically.

Should I then still file for Naturalization given that situation? Or will that cause conflict?

Thanks!

[payxibka 10,047]

moving from K-1 to Citizenship forum

[Brother Hesekiel 2,236]

I'm sorry, but what is your problem? Clearly, you are meeting all of the requirements for "early" naturalization. Why wouldn't you want to file the application? I don't understand . . .

Adjustment of Status: stressful

Removal of Conditions: easy

Naturalization: fun

Edited November 5, 2009 by Just Bob

[lucyrich 20]

You've got an interesting situation. If you spend time living apart, you may have some problems with that "and living with" phrase. Note that the law in INA 319(a) merely says "living in valid marital union with". Much of the USCIS paperwork uses the phrase "married to and living with". There's a subtle distinction between these two phrases.

You may want to read the USCIS interpretations, part 319.1

http://www.uscis.gov/ilink/docView/SLB/HTM...tml#0-0-0-22701

(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. 13 /

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. 14 / 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 , 13 / also does not affect eligibility.

Another petition, 14a / 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, 14b / 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 14c / 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. 15 /

That next-to-last paragraph probably should give you hope.

I do know that there was at least one report here on VJ from a couple who went through the process after entry on a CR-1 visa, and filed 90 days prior to accumulating 3 years with a green card. They were denied, because the adjudicator said that, at the time they filed, they hadn't been living together for the full three years. Before entry to the US on the CR-1 visa, they had been married, but living in separate countries. Perhaps they could have argued that their separate living arrangement constituted "living in valid marital union with", and was "solely as a result of circumstances beyond their control", but it was easier to re-file than to try and appeal the decision.

I suspect your situation more clearly falls within the bounds of that next-to-last paragraph, but I really don't know.

I do believe that, as long as you tell the truth always, the worst that will happen if you file soon will be wasted time and money. Even if they deny the naturalization, you'll still be eligible to file after you've accumulated 5 years (or after you've accumulated 3 years unambiguously married and living together, but that'll probably be later than your five year eligibility).

[Italian_in_NYC 259]

My wife studied her last semester of law school in Japan and obviously wasn't living with me (even though I visited once a month).

No need to mention that.

If your husband will follow you soon, then it's not going to be a problem at all.

[Kathryn41 3,205]

You will probably be fine to file on schedule. You are not living apart by choice so much as by temporary consequences of employment. Your plans are once you find a place to live, he will be leaving his employment to follow you. That is not technically living apart - it is temporary separation due to relocation and the need to keep employment going in the former home while setting up for employment in the new home. You still have a valid marital union - it is a temporary situation caused by the external circumstances. If you were planning on living and working separately for an extended period of time I would say you might have problems explaining things. With matters as you have described them you should be fine. I say go for it .

Edited November 6, 2009 by Kathryn41

[JayCeeEn 0]

Thank you so much for your time and inputs! I appreciate lucyrich for also referencing the USCIS interpretations. I have printed all your replies so I can ponder upon them.

I am just overwhelmed with the moving preparations, being away from my husband and the whole adjustment. But I will not stress anymore. Life is good!