Question:
“I have been married for eight years. I was granted a green card and became a permanent resident through my wife. She is a U.S. citizen, born in Phoenix, Arizona. We are now separated and have lived apart for several months. I moved to California and she lives with our children in Seattle, Washington. Despite our separation, can I still file for citizenship?”
(Submitted by Frank K., El Cajon, CA)
Answer:
As a general rule, you do not have to be physically living together with your wife at the time of filing to become a naturalized citizen of the United States.
But based on what you have written, separation from your spouse could have an adverse effect on your application at this time.
Allow me to explain.
Will Spousal Separation Or Divorce Affect Your Citizenship Application?
In short, your top concern seems to be timing. By that, I mean how long ago did you become a permanent resident?
The normal waiting period between becoming a permanent resident and filing for citizenship is five years. There is an exception for immigrants who obtained green card status through marriage to a U.S. citizen spouse.
You may fit into this exception.
Because you gained residency via your citizen wife, you are allowed to file after three years of becoming a legal resident . . . if you can meet the requirements.
One rule is that you are not eligible to become a U.S. citizen under the three year rule if, before filing the application, your marriage ends due to divorce or separation.
Without knowing when you became a legal resident, there appear to be possible circumstances where your separation could be a factor which negatively affects whether your application is granted.
For example, let’s assume you were granted a green card three years ago. During this period, you have separated from your wife. Government officials are going to review this period closely.
If your separation is not just a physical separation, but also a legal separation, this could pose a major problem.
As you might know, under state family law rules, a legal separation usually refers to a formal decree of separation between you and your wife granted by a judge. The court order often sets forth child custody sharing responsibilities, child support amounts, and division of debts and assets.
For this answer, I assume that your separation has not been caused by domestic violence perpetuated upon your spouse. If there has been abuse, and there have been either court papers filed or court orders issues reflecting the marital hostilities, this could lead to more serious ramifications.
Such matters could lead to deportation charges being filed against you. For more information on this topic, see: What Every Immigrant Needs To Know About Hostile Divorce Cases.
A legal separation has most of the same legal requirements and effects as a divorce. The major difference is that you and your spouse have not firmly decided to terminate your marriage.
In the view of many immigration officers, this type of formal legal separation would be interpreted as a break in the marital relationship.
Even when your separation is only informal, with no court order, it may still equal a marriage break for immigration purposes.
On the other hand, if your separation is only physical, that’s a different story. This might be the case if you’re living in California for employment purposes.
As long as you and your wife’s intentions are not to legally separate, you should be able to successfully go forward under the three year rule.
Proving this may not be as simple as it sounds.
To be clear, your physical separation, alone, is going to raise questions for the government. You will have to answer more questions than if you were living together with your wife. You may also need to show proof that your separation is physical and temporary, not legal or permanent.
Let’s say you do have a problem with the three year rule due to the nature of your separation. You may have a relatively easy, though time-consuming, solution.
Merely wait a few more years before filing for naturalization. If you delay filing for citizenship until you have five years of permanent residency, your chances for success are better, even if you and your wife live in different cities, states, or countries.
Your eligibility will no longer be determined by whether you are married, separated, or divorced. The decision on your case will turn on issues other than your marital status.
It’s important to realize, however, these requirements can also cause problems for you.
To play it safe, before you file for citizenship, I recommend consulting with an immigration lawyer to assess the specific details of your case.
If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Citizenship And Naturalization Attorney Services page for more information.
Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.
