N-400 application 3year rule

[Pshine 5]

My friend is be married  and would have her green card for 5years this coming October. She’s been trying to work stuff out with the husband but it really goes nowhere. They have two kids together, file joint taxes together but divorce may or may not happen. She wants to file her papers base on the 3year rule but is unsure about it. She doesn’t know if they might get divorced between now and October, or before her interview which is going to be so far away. Is she ok to file now while they are still married under the 3year rule and just take the divorce paperwork to her interview, whenever that maybe? Thanks

Edited February 1, 2019 by Pshine

[USS_Voyager 1,972]

She can file 90 days before her 5 years mark. The simplest thing to do is to file based no the 5 years rule. It's only 5 more months or so. 

[Going through 5,671]

When they discover during the interview that the couple is going through divorce proceedings, the N400 will be denied since she would have no longer been eligible for naturalization under the 3-year rule.  The IO will then advise her to reapply after meeting the 5 year residency requirement (and pay the fee again, of course).

 

She needs to wait the extra months until October when she is eligible to apply under the 5-year residency rule, where her marital status is then irrelevant to her application.  She's waited this long to be a citizen---surely she can wait 5 or 6 months more?

 

 

 

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

"1. Married and Living in Marital Union

In general, all naturalization applicants filing on the basis of marriage to a U.S. citizen must be the spouse of a U.S. citizen from the time of filing the Application for Naturalization until the applicant takes the Oath of Allegiance. In addition, some spousal naturalization provisions require that the applicant “live in marital union” with his or her citizen spouse prior to filing the Application for Naturalization. [19] USCIS considers an applicant to “live in marital union” with his or her citizen spouse if the applicant and the citizen actually reside together.

 

An applicant under the special provisions for spouses is ineligible for naturalization if:

* The applicant is not residing with his or her United States citizen spouse at the time of filing or during the time in which the applicant is required to be living in marital union with the citizen spouse; or

* If at any time prior to taking the Oath of Allegiance, the spousal relationship is terminated or altered to such an extent that neither the applicant nor the U.S. citizen spouse can be considered to be residing together as husband and wife."

 

Divorce or Annulment

 

A person’s marital status may be terminated by a judicial divorce or by an annulment. A divorce or annulment breaks the marital relationship. The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by a divorce or annulment. Accordingly, such an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed. ^[24] 

Edited February 1, 2019 by Going through

[Mike E 11,739]

Even if she waits until 5 years less 90 days, I disagree that marital status is not relevant to the application. I was married 30 years, got divorced then filed for N-400.  Because my green card was through marriage, the USCIS Officer wanted to be satisfied that the marriage was genuine.  

[Going through 5,671]

18 hours ago, Mike E said:

Even if she waits until 5 years less 90 days, I disagree that marital status is not relevant to the application. I was married 30 years, got divorced then filed for N-400.  Because my green card was through marriage, the USCIS Officer wanted to be satisfied that the marriage was genuine.  

They do that to determine the GC was approved properly in the first place---that's part of the overall adjudication for the N400 to determine proper approval, since it's their last-ditch effort to ensure no mistakes were made by USCIS along the way.  The reason the marital status is not relevant at this point for the N400 is because it cannot be a sole determining factor towards a denial when applying under the 5-year rule (whereas it can be a sole determining factor under the 3-year rule, and why it's not advisable to apply under the 3-year rule in OP's case), but yes they will go through the entire file during the N400 interview.  I was also asked questions regarding my marriage as well (never got divorced) as part of determining the circumstances of how/when/why my AOS and ROC was approved, as a step before approving the N400.

Edited February 3, 2019 by Going through