If you’re reading this, you probably received your green card through marriage and you’re contemplating separation, divorce, or even both. Perhaps you have initiated divorce proceedings, or a Judge has already signed off on your divorce. Maybe you’re just curious how it all works. Regardless, if you’re going through something as unpleasant as marital problems, I hope this helps shed some light on an otherwise dark topic.
Most lawful permanent residents (green card holders), may obtain U.S. Citizenship after 5 years of obtaining their green card. However, if you received your green card through marriage to a U.S. Citizen, you may obtain U.S. Citizenship after 3 years becoming a lawful permanent resident. Whether the 5 year or 3 year requirement applies in your case, you may file a naturalization application 90 days in advance of completing your required number of years.
But what happens if you encounter marital problems before you have become a naturalized U.S. Citizen?
All types of human relationships can encounter problems. Marriages are no different. Marital problems aren’t exclusive to spousal relationships between a U.S Citizen and a foreign spouse. Marriage issues can occur in any relationship. The only difference in marriage problems involving a foreign spouse is that the U.S. Government may still be interested in how the relationship is going.
If you anticipated filing for naturalization in three years but have now encountered marital problems, you may still file for naturalization provided you are actively working on your relationship. If you and your spouse are not working on your relationship, but are affectively separated, even if you’re still living under the same roof, the U.S. Citizenship and Immigration Services (USCIS) will take the position that your marriage does not satisfy the “living in marital union” requirement found at 8 CFR §319.1. The government understands that marriages don’t always work, after all, the divorce rate in the U.S is above 50%. However, the ability to earn naturalization after 3 years is a benefit provided under the law from the usual 5-year waiting period. In order to obtain this benefit, the green card holding spouse must continue to be living in marital union with the U.S. Citizen spouse. The living in marital union requirement means that a divorce has not taken place, but also that the marital relationship continues to exist, not just on paper. The marriage must be viable, not irretrievably broken. If you’re still legally married but you’re living separate lives, that would not be considered “living in marital union.” Just like everyone else, U.S. Citizen couples encounter relationship issues all the time, and so can you as a foreign spouse, but you must be actively trying to resolve the issues, for example, with or without counseling. But if you no longer live under the same roof and are not working towards repairing the relationship, you should wait till you have held the green card for 5 years before filing for naturalization.
Additionally, when you file for naturalization after 3 years of marriage to a U.S. Citizen, the U.S. Government will want to see evidence of the relationship. Even if you just got done with your removal of conditions petition, the government will again want to see evidence that you have been living in marital union with your spouse for the last three years. If you file naturalization in 3 years of obtaining your green card to a U.S. Citizen and cannot meet this burden, then your naturalization application will be denied. If you are having marital problems and are contemplating filing for naturalization in 3 years after obtaining your green card, speak with an experienced immigration attorney you trust to evaluate whether you should file naturalization after 3 years or 5 years. And as always, be completely honest with your attorney so that the advice given by your lawyer is accurate. Lawyers usually work on the facts as given to us by the client, and if the facts given to us are inaccurate, the advice we give can also be inaccurate as we would have been working with false or incomplete information - Both of which can lead to dangerous results for a client.
Having said all that, there is an exemption from the “living in marital union” requirement for those who have been battered, subjected to extreme cruelty and/or a widow(er) by their U.S. Citizen spouse. These victims need not wait for 5 years to apply for naturalization but instead may do so in 3 years.
Sunil C. Patel is an experienced immigration attorney and himself a first-generation immigrant. Formerly a managing attorney with a multinational immigration and corporate law firm, he now focuses his practice exclusively in immigration law at his own law firm, Sunil C. Patel Immigration Law, LLC. To schedule a consultation, please call (770) 756-6056 or visit www.sunpatlaw.com. You may also schedule an appointment by selecting an available time on his online calendar.
