Applying for citizenship (married but separated)

[Dimsa 0]

I'm eligible to apply for a citizenship (3 years in marriage with US Citizen). Unfortunately, me and my wife decided to get separated but she agreed to not get a divorce until I get my citizenship. Only thing she wants to do right now is to change her last name to her maiden last name.

Do you think if she change her last name to her maiden last name now, that would be an issue with my application?

[aleful 1,905]

sorry, but it doesn't work that way

 

now that you are separated, you will have to wait until you have 5 years of residency. 90 days before your 5th year, you can apply for citizenship

 

under the 3 year rule, you will have to prove once more that you have a bona fide marriage, which you don't, you aren't living together,

 

so she can do what she wants, even divorce since you can't apply for citizenship right now. Divorce and move on with your life and in a few years you can apply for citizenship. Plus in some states the citizenship can take a year or more to process. so best do things now if you can't work things out.

 

so sorry it didn't work out

 

 

[Going through 5,671]

2 hours ago, Dimsa said:

I'm eligible to apply for a citizenship (3 years in marriage with US Citizen). Unfortunately, me and my wife decided to get separated but she agreed to not get a divorce until I get my citizenship. Only thing she wants to do right now is to change her last name to her maiden last name.

Do you think if she change her last name to her maiden last name now, that would be an issue with my application?

You are no longer eligible to file under the 3-year rule since you are separated.  One of the requirements for filing under the 3-year rule is that you have lived in marital union together for the entire 3 years prior to the date of filing....even if you "hold off" on official divorce proceedings until later on, your separation (whether a legal separation or not) will result in a denial of your N400 since the ajudication is marriage-based.

 

If you wait a couple of years, you will be eligible for the 5-year residency rule filing and it won't matter then whether you are married, separated or divorced.

[Unlockable 7,314]

Agreed. If you are not together then you are technically not eligible. And if found out, it would lead to major problems.

[kzielu 1,149]

5 hours ago, Dimsa said:

I'm eligible to apply for a citizenship (3 years in marriage with US Citizen). Unfortunately, me and my wife decided to get separated but she agreed to not get a divorce until I get my citizenship. Only thing she wants to do right now is to change her last name to her maiden last name.

Do you think if she change her last name to her maiden last name now, that would be an issue with my application?

In addition to what others have written above - you may be asked during interview if you have been separated during past three years (I was - asked, not separated). It's simple - if you're separated, you're no longer eligible to file under 3 years rule. Your wife's last name or current marital status doesn't really matter.

Edited April 25, 2018 by kzielu

[Mike X Man 37]

💯. Wait the 5 years. 

[geowrian 22,337]

Exactly. Being legally separately won't qualify for the marital union requirements. Even living apart but not being legally separated can be deemed as violating this requirement.

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html#S-B

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-31517/0-0-0-31522.html

"(b) Marital union.

(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

(2) Loss of Marital Union.

(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.

(ii) Separation.

(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union. "

[Binna 108]

14 hours ago, geowrian said:

Exactly. Being legally separately won't qualify for the marital union requirements. Even living apart but not being legally separated can be deemed as violating this requirement.

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html#S-B

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-31517/0-0-0-31522.html

"(b) Marital union.

(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

(2) Loss of Marital Union.

(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.

(ii) Separation.

(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union. "

Let me act as a devil's advocate for a bit here... So the OP didn't say the type of separation - legal or informal. Looking at the policy you posted, statement on (2) (ii) (B), if their separation is informal then the OP could still stand a chance for further scrutiny to determine if their marital union is dissolved or not (meaning OP could still stand a chance of going for 3 years rule ).  Perhaps OP should assess their separation to determine if it is legal or informal. If informal then look to see if it falls into the basis of dissolution of their marriage or not then take it from there.

 

@Dimsachanging of last name shouldn't be a problem if your separation issue as mentioned above is in the clear.

[Going through 5,671]

1 hour ago, Binna said:

Let me act as a devil's advocate for a bit here... So the OP didn't say the type of separation - legal or informal. Looking at the policy you posted, statement on (2) (ii) (B), if their separation is informal then the OP could still stand a chance for further scrutiny to determine if their marital union is dissolved or not (meaning OP could still stand a chance of going for 3 years rule ).  Perhaps OP should assess their separation to determine if it is legal or informal. If informal then look to see if it falls into the basis of dissolution of their marriage or not then take it from there.

USCIS's policy manual for officers further explains how they a person informally separated shall be adjudicated...if he is still living in the SAME HOUSEHOLD as his wife, he stands a chance...if it can be proven by USCIS that he is NOT, then he's not eligible for approval under the 3-year rule:

 

Informal Separation 

 

In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse.

 

However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. ^[30] Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity.

 

Factors to consider in making this determination may include:

 

•The length of separation;

•Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;

•Whether the spouses intend to separate permanently; and

•Whether either spouse becomes involved in a relationship with others during the separation. ^[31] 

 

^{https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html}

Edited April 26, 2018 by Going through

[Binna 108]

14 minutes ago, Going through said:

USCIS's policy manual for officers further explains how they a person informally separated shall be adjudicated...if he is still living in the SAME HOUSEHOLD as his wife, he stands a chance...if it can be proven by USCIS that he is NOT, then he's not eligible for approval under the 3-year rule:

 

Informal Separation 

 

In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse.

 

However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. ^[30] Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity.

 

Factors to consider in making this determination may include:

 

•The length of separation;

•Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;

•Whether the spouses intend to separate permanently; and

•Whether either spouse becomes involved in a relationship with others during the separation. ^[31] 

 

^{https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html}

@Dimsa there you go with all the answer you need. Now you and only you can decide on whether you qualify for 3 years rule or not. If I am to adjudicate on this case, I personally don't think you qualify though. Based on one of the factors that will be used to determine if your informal separation status (if Informal is your case).

 

•Whether the spouses intend to separate permanently

 

You mentioned that you guys intend to get divorce after you obtain your citizenship, this intent means you don't qualify, sorry you may have to wait additional 2 years.

 

[Going through 5,671]

Main determining factor for approval under informal is whether or not the OP still resides in the same household as his estranged wife.

[geowrian 22,337]

6 hours ago, Binna said:

Let me act as a devil's advocate for a bit here... So the OP didn't say the type of separation - legal or informal. Looking at the policy you posted, statement on (2) (ii) (B), if their separation is informal then the OP could still stand a chance for further scrutiny to determine if their marital union is dissolved or not (meaning OP could still stand a chance of going for 3 years rule ).  Perhaps OP should assess their separation to determine if it is legal or informal. If informal then look to see if it falls into the basis of dissolution of their marriage or not then take it from there.

That might be possible but would be very risky IMHO, and not something I would advise personally. I'd add that they must also reside with their spouse as well: "An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part."

Edited April 27, 2018 by geowrian

[Dimsa 0]

Okay, thank you for your responses guys! Yeah I think is a little risky, so I'll just wait additional 2 years.

[Eric-Pris 1,606]

Smart decision.  Getting caught in fraud would probably mean never getting citizenship.  I wouldn't risk it either.