Thursday, April 28, 2011

Naturalization Based on Three-Years of Marriage

You’ve had your green card for three years and you’re married to a U.S. Citizen. Now is the time to file your naturalization application, right?

Not so fast. There are a number of eligibility requirements that applicants must meet before applying to naturalize. When applying based on 3 years of marriage to a U.S. citizen, the applicant must have been living with their U.S. citizen spouse for the three years preceding the date of filing the citizenship application. Specifically the couple must have been living in marital union, defined in the regulation as actually residing with each other. The burden is on the applicant to prove that his or her marital union satisfies this requirement.

If the couple divorces, a party dies, or the U.S. citizen spouse expatriates, then the applicant can no longer naturalize based on three years of marriage to a U.S. citizen. So what happens to an applicant who is separated but not divorced? The determining factor is whether or not the separation signifies dissolution of the marital union. Legal separations and some informal separations will serve to dissolve marital unity thus making the applicant ineligible to naturalize based on 3 years of marriage. Involuntary separation, such as that which occurs when one spouse is deployed in the course of service in the U.S. Armed Forces, does not dissolve marital unity.

This immigration benefit permitting a green card holder to apply for U.S. citizenship after 3 years if the applicant is married to a U.S. citizen is governed by 8 C.F.R. 319.1(a)(3) and Immigration and Nationality Act section 319(a). The U.S. citizen spouse must have been a U.S. citizen for the entire 3 years. If the relationship doesn’t work out, marriage to another U.S. citizen will not serve as a substitute for purposes applying for this benefit.

What can you do if you no longer qualify for this benefit? You can submit your naturalization application after you have had your green card for five years. USCIS should not penalize you in the event that you had applied after 3 years and were deemed ineligible for this reason (or you withdrew your application after discovering you were no longer eligible for the 3 year benefit). However, keep in mind that every application to USCIS gives the agency a new opportunity to dig into your immigration history. Should you have an irregularity in your past then you should see an immigration lawyer who can advise you on whether or not to proceed.