N-400 interview scheduled and Divorce pending

[kstewyc 11]

Hi all,

I have a situation that I'm not sure what to do. I have the N-400 (3-year rules, naturalization as the spouse) interview date scheduled; unfortunately, I and my spouse are in the process of divorce. I already mailed out the withdrawal letter in December but never received the withdrawal confirmation from USCIS. I don't know what to do now, should I still be prepared and go to the interview and just be upfront that we're divorce, or just miss the interview? I tried to call USCIS but you know how hard it is to be able to speak to an officer. I'm just afraid this can cause my case to be denied and I won't be able to apply again in the future?

Thank you!!

Edited January 26, 2022 by kstewyc

[Mike E 11,739]

2 minutes ago, kstewyc said:

Hi all,

I have a situation that I'm not sure what to do. I have the N-400 (3-year rules, naturalization as the spouse) interview date scheduled; unfortunately, I and my spouse are in the process of divorce. I already mailed out the withdrawal letter in December but never received the withdrawal confirmation from USCIS. I don't know what to do now, should I still be prepared and go to the interview and just be upfront that we're divorce, or just miss the interview? I tried to call USCIS but you know how hard it is to be able to speak to an officer. 

Thank you!!

Go to the interview and be upfront.  
 

 

[kstewyc 11]

4 minutes ago, Mike E said:

Go to the interview and be upfront.  
 

 

Thank you! I also think that's the only way I can do now.

[Mike E 11,739]

11 minutes ago, kstewyc said:

Thank you! I also think that's the only way I can do now.

You might luck out and get approved. Bring evidence of bonafide marriage between green card approval and the point you filed for divorce 

[Allaboutwaiting 2,503]

The case will likely be denied as one requirement for the 3 year rule is living in marital union with your U.S. citizen spouse during the three years immediately before the date you file your application and while they adjudicate your application.

 

But that won't affect if you apply under the 5 year rule. 

[Vengatore 53]

15 hours ago, Mike E said:

You might luck out and get approved. Bring evidence of bonafide marriage between green card approval and the point you filed for divorce 

 

Sorry to say this, but heres literally zero chance to get approved under 3yr rule if you filed for divorce.

[TexasIndependence 3]

Hi! You are NOT required to live in martial union after you file. https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

 

USCIS changed their policy in 10/2018. Marital union is ONLY required 3 years prior to filing.

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-3

 

The existence of a legally valid marriage is the requirement between filing and oath. Hope this helps. This is their own manual and they MUST abide by it.

 

Most people and lawyers don't know this but it's their official policy. Look up "living in marital union update" on Google and it will clearly tell you how the policy changed.

 

Check with a GOOD lawyer who knows this part of the law. If they don't know it, highlight these policies to them.

Edited January 29, 2022 by TexasIndependence

[Allaboutwaiting 2,503]

22 minutes ago, TexasIndependence said:

Hi! You are NOT required to live in martial union after you file. https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

 

USCIS changed their policy in 10/2018. Marital union is ONLY required 3 years prior to filing.

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-3

 

The existence of a legally valid marriage is the requirement between filing and oath. Hope this helps. This is their own manual and they MUST abide by it.

 

Most people and lawyers don't know this but it's their official policy. Look up "living in marital union update" on Google and it will clearly tell you how the policy changed.

 

Check with a GOOD lawyer who knows this part of the law. If they don't know it, highlight these policies to them.

Wrong. 

The requirement is to live in marital union with the citizen spouse for the three years preceding the date of examination on the application.

[TexasIndependence 3]

34 minutes ago, Allaboutwaiting said:

Wrong. 

The requirement is to live in marital union with the citizen spouse for the three years preceding the date of examination on the application.

Nope. Sorry to break it to you. If it was that way, USCIS would have no updated their policy and the N-400 instructions wouldn't state "bring evidence that you lived in marital union for three years AT THE TIME OF FILING".

 

Check your facts. Attached the PDF. ONLY until filing. Here is an article from a top law firm about it https://www.murthy.com/2018/11/07/uscis-policy-manual-update-on-naturalization-based-on-marriage-to-usc/

 

Consult a good attorney.

20181012-MaritalUnion.pdf

Edited January 29, 2022 by TexasIndependence

[Allaboutwaiting 2,503]

22 minutes ago, TexasIndependence said:

Nope. Sorry to break it to you. If it was that way, USCIS would have no updated their policy and the N-400 instructions wouldn't state "bring evidence that you lived in marital union for three years AT THE TIME OF FILING".

 

Check your facts. Attached the PDF. ONLY until filing. Here is an article from a top law firm about it https://www.murthy.com/2018/11/07/uscis-policy-manual-update-on-naturalization-based-on-marriage-to-usc/

 

Consult a good attorney.

20181012-MaritalUnion.pdf 169.26 kB · 0 downloads

 

That is for ELIGIBILITY. Very different from adjudication.

Edited January 29, 2022 by Allaboutwaiting

[TexasIndependence 3]

9 minutes ago, Allaboutwaiting said:

 

That is for ELIGIBILITY. Very different from adjudication.

From the manual: 

 

"If the applicant ceases to reside with his or her U.S. citizen spouse between the time of filing and the time at which the applicant takes the Oath of Allegiance, the officer should consider whether the applicant met the living in marital union requirement at the time of filing".

 

If it was for eligibility only, it wouldn't address the officer to check marital union at filing but would flat out say deny it.

 

Also, still fr the manual

 

"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."

Edited January 29, 2022 by TexasIndependence

[Allaboutwaiting 2,503]

6 minutes ago, TexasIndependence said:

From the manual: 

 

"If the applicant ceases to reside with his or her U.S. citizen spouse between the time of filing and the time at which the applicant takes the Oath of Allegiance, the officer should consider whether the applicant met the living in marital union requirement at the time of filing".

 

If it was for eligibility only, it wouldn't address the officer to check marital union at filing but would flat out say deny it.

 

Also, still fr the manual

 

"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."

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-319/section-319.1

[TexasIndependence 3]

15 minutes ago, Allaboutwaiting said:

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-319/section-319.1

Again, USCIS chooses the language of the INA. INA says 

 

"Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427(a) of this title if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such."

 

This is from INA. The manual says it governs over CFR which states up to examination. If it was only for eligibility, INA wouldnt say "my naturalize", but "may apply for naturalization".

 

Check out Ali v. Smith for clarifications.

Edited January 29, 2022 by TexasIndependence

[Allaboutwaiting 2,503]

4 minutes ago, TexasIndependence said:

Again, USCIS chooses the language of the INA. INA says 

 

"Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty,may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427(a) of this title if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such.

 

CFR draws power from INA. If INA says up to filing they have to keep it up to filing. That's why the manual says INA and CFR differ. CIS must follow INA if it's no entitled to deference.

The section you're quoting just applies to battered applicants.

[TexasIndependence 3]

2 minutes ago, Allaboutwaiting said:

The section you're quoting just applies to battered applicants.

Hi! No it's the section of the code for . "Married persons and employees of certain nonprofit organizations". If you look at manual, marital union is waived completely for battered spouses. No requirement at all. 

 

"A person subjected to battery or extreme cruelty by his or her U.S. citizen spouse is exempt from the following naturalization requirements:[18]

 

Married to the U.S. citizen spouse at the time of filing the naturalization application;

 

Living in marital union with the citizen spouse for at least 3 years at the time of filing the naturalization application; and

 

Applicant’s spouse has U.S. citizenship from the time of filing until the time the applicant takes the Oath of Allegiance.[19]

 

The spouse must meet all other eligibility requirements for naturalization.[20]"

 

 

Here is the thread from VJ that discusses this:

 

https://www.visajourney.com/forums/topic/687542-new-policy-marriage-and-living-in-marital-union-requirements-for-naturalization/page/2/