Separating from USC spouse after N400 filing

[Jakk 67]

Hi all. I just received my 10-year green card when my i-751 ROC was approved a week ago. It's been over 3 years since I first got the conditional green card from marrying a US citizen.

 

I'm thinking of applying for citizenship using the 3-year rule for USC spouses. However, my spouse and I are thinking of separating soon, i.e. we will be living separately. If I apply for the N400 while we are still living together, and if we do not get divorced (on paper) until after my N400 is approved, would this be an issue?

 

I saw the following paragraph on the USCIS website that made me think this is ok:

B. Living in Marital Union for Spouses Residing in the United States

The spouse of a U.S. citizen residing in the United States must have been living in marital union with his or her citizen spouse for at least 3 years immediately preceding the time of filing the naturalization application. This provision requires that the spouse live in marital union with the citizen spouse during the entire period of 3 years before filing.^[4]

However, the statute does not require living in marital union for the period between the date of filing the application and the date of naturalization (date applicant takes the Oath of Allegiance). The corresponding regulation conflicts with the statute in stating that the spouse must have been living in marital union with his or her citizen spouse for at least 3 years at the time of the examination on the application, and not at the time of filing.

USCIS follows the language of the statute in requiring living in marital union only up until the time of filing.^[5] Accordingly, only the existence of a legally valid marriage is required from the date of filing the application until the time of the applicant’s naturalization.^[6]

[aaron2020 11,651]

It would be best if you waited to file under the 5 years rule.

 

They will examine your marriage under the 3 years rule.  They will want to see that you have a real ongoing marriage at the interview.