Involuntary separation under the 3 year rule?

[ericshoot 0]

I'm about to submit my naturalization application under the three year rule. However, I just moved away a month ago from USC spouse for a new job after graduation with an MBA degree. We live in the same states about 2 hours apart.

Does anyone have experience claiming the "involuntary separation" clause in their application? What was it like?

[Rc123rc 528]

This would be a voluntary separation. You decided on your own to accept a job away from your spouse. No company can force you.

[Boiler 45,519]

I was thinking the same.

[mallafri76 1,012]

Very few things fall under the involuntary separation clause and work is not one them. You can either turn down the job and stay with your spouse, your spouse can move with you to the new city or you wait with naturalization to the five year mark. Or you can take USCIS to court to test their interpretation of INA 319(a).

Edited June 19, 2016 by mallafri76

[ericshoot 0]

8 CFR 319.1(b)(2)(ii)©​ 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.

I certainly will test their interpretation of "occupational demands". I consulted an immigration lawyer, who suggests that I have an affidavit from employer saying my job can only be carried out on site.

[ericshoot 0]

This would be a voluntary separation. You decided on your own to accept a job away from your spouse. No company can force you.

It's either this offer or become unemployed.

[ericshoot 0]

Involun​tary S​eparation​

​

Under very limited circumstances​ and where there is no indication of marital disunity​, an applicant may be able to establish that he or she is living in marital union with his or her ​U.S. citizen ​spouse even though the applicant does not actually reside with citizen spouse. ​An applicant ​is not​ ​made ineligible for naturalization for not living in marital union if ​the separation is due to ​circumstances beyond his or her control, such as​:​ [32]

​

S​ervice in the ​U.S. a​rmed ​f​orces​;​ or​

​

Required travel or relocation for​ ​employment​.​

​

USCIS does not consider incarceration ​during the time of required living in marital union​ to be a​n involuntary ​separation​.​

This is from USCIS service manual, which clearly states "relocation for employment".

[EM_Vandaveer 2,408]

Yes, but what precludes your spouse from moving with you?

[JR loves JR 196]

How is it involuntary if you can choose to accept the job and move or not accept the job? How long have you been living apart? Would it be possible for your spouse to move? I'm sure it's a much better job than what's available near your spouse's job at the moment but USCIS doesn't really care if its rules result in applicants being inconvenienced or losing out on a great job opportunity.

Before you get too far into this. Why not just wait to file for naturalization until you reach the 5 year mark? You can still take the job and live where you want. I'm assuming you have a 10 year greencard so it wouldn't even result in more paperwork. In fact, not having to prove a legitimate relationship at the 5 year mark is WAY less paperwork.

If you're set on filing under the 3 year rule, I'd highly recommend getting a couple additional legal opinions about your chances to qualify under the involuntary separation clause. Filing for naturalization isn't cheap but taking the USCIS to court will be incredibly expensive and time consuming. By the time it's all said and done the 5 year filing option might actually be faster. (Wouldn't the timeline go something like this: file for 3 year, wait for interview, maybe get denied, prepare your argument, file your lawsuit, wait for your day in court, receive decision? I can't imagine that being a short process.) And your evidence of the letter from your employer is kind of weak. Most companies only have offices in one or two cities but there are many similar jobs throughout the nation. So you might only be able to work for company A in city A but you can get the same type of job in city B with company B (or your spouse could). You'll have to prove that neither you nor your spouse would be able to find a job in the same city. I'd suspect that your lawyer is seeing dollar signs and selling you a fairy tale.

[Rc123rc 528]

We're not saying you are wrong but if you file under this circumstance you need to be able to prove you qualify for all the conditions that will be required plus adequately answer the questions you will be given. Obviously you have done some research into this matter already since you responded so quickly with references. You will certainly be asked why you are not pursuing other options first. Good Luck.

[ericshoot 0]

Thank you for the replies everybody. I'm prepared for additional scrutiny for my case. I need to collect as much documents to support my case to the best of my ability.

Since this is my first job so I didn't really have much choice/leverage in job locations. Husband is working on a cross functional HR team and cannot work remotely.

I am going to try my best to present my case. If I'm denied, I'll just wait for another two years instead of appealing the decision. For now, I need the work experience and endure the separation to be able to reunite with husband in the near future.

[NikLR 13,227]

Also if the job is 2 hours away from your spouse, could you not both live 1 hour away from each of your respective jobs? Many people even at my work place drive an hour each day to get to work. Some even more so due to high traffic volumes.

[NikLR 13,227]

We're presenting the arguments which are viable.

For instance, when I "relocated" to be with my spouse to claim EI (unemployment) in Canada, I had to prove that my job would not be able to continue when I moved. Since I worked a specifically Canadian retail company, it was impossible. Also since my new home was 18 hours of straight driving from my old one, there was no way to commute.

Lets say you were contracted with a company and they required you to go to, oh... India, for work. That would be a involuntary separation because you were under contract and they required it. Or lets say you worked for an oil company and spent 6 weeks on site, and 2 weeks at home. That would also be okay. However, you're acquiring this job with knowledge that you will have to move, and you guys aren't trying to find a way to stay together for simple 2 hour drive. My husband is currently in a class about 1.5 hrs north of us. He drives home every day. But when he attends mandatory work training in OKC, which is 14 hours away, he obviously can't do that. I have taken time off work to be able to spend with him while he's gone as well.

Some people do commute 2+ hours each way to work as well.

[Villanelle 4,122]

The OP is correct with the INA codes they posted. However the exact wording of the policy (as so many others) is contradictory.

Part B states An informal separation will be evaluated on a case by case basis to determine whether it is sufficient to signify a dissolution of the marriage. 8 C.F.R. § 319.1(b)(2)(ii)(B).

Part C states Involuntary separation due to military service or occupational demands will not disrupt the “marital union” requirement. 8 C.F.R. § 319.1(b)(2)©.

As the OP stated employment is listed as a valid involuntary reason and I cant find any cases where it was object for said reason so I dont think thats where the problem lies. The problem is whether they believe the separation is voluntary or involuntary. This seems to be decided on a case by case basis. A lot of users here have given reasons why it could be viewed as voluntary.

If the OP can afford to file and has the time to spare then she can try it.

[Unlockable 7,314]

It's either this offer or become unemployed.

But your husband would continue working and supporting you while you are unemployed and looking for something in your city.