Filed N-400 and now marriage is heading south

[YankeeDoodle 0]

Hi,

Long story short, got married in 04..... was legal before that F1 - Student visa. Marriage was in good faith.... had a beautiful child from it. Got my 2 yr green card in 11/05.... filed for removal of condition in 07..... got 10 yr green card in 08.....During all this time marriage starts to get shaky and USC wife start abusing and gets her first big job and starts earning significant money for the first time and no more dependent on her foreign husband anymore.

Anyways filed for N-400 in 08/08.... Had biometrics done 9/08.... Marriage still bad and wife talking abt moving out.

Latest status, 10/08 -- Wife moved out to an apartment, took our child with her and has protection order against me. So, I cant contact her or my child till the court hearing is done next month.

Now question to you guys: What should I do? Dont know when I'll get the USC interview and test? Dont know what will be the status of our marriage by then. In case I am not legally divorced by the time of interview and oath, will I still be ok? If we are legally separated by then how should I proceed?

What are my options here?

Any help will be greatly appreciated.

Thanks.

Yankee

[akdiver 3]

Marriage was in good faith.... had a beautiful child from it.

I've noticed recently that no one ever claims to have an ugly child, or a dumb child. Makes you wonder where all the ugly and dumb adults come from.

Dont know what will be the status of our marriage by then. In case I am not legally divorced by the time of interview and oath, will I still be ok? If we are legally separated by then how should I proceed?

You met all of the requirements when you filed. If you are not legally divorced before your interview, then as I see it, you still meet all the requirements. I don't see a problem here. My vote is that you proceed "as normal". When you go to the interview, be sure to bring photos of this wife and kid of yours, as well as kid's birth certificate, and marriage certificate to boot. Go in fully prepared and don't give them any reason to ask you unnecessary questions. Edited October 8, 2008 by akdiver

[lucyrich 19]

See INA 319 and 8 CFR 319.1

INA Click on ACT 319, and read paragraph (a)

8 CFR Click on 319, and then click on 319.1

INA 319 only talks about the requirement to live together in valid marital union prior to the filing date.

8 CFR 319.1 talks about the requirement to live in valid marital union prior to the examination date.

According to 8 CFR 319.1, it looks like if you actually have a legal separation or divorce before your interview or oath, then you'll be ineligible to naturalize under the "3 years married to US Citizen" provision, and you'd have to file another N-400 when you have completed 5 years less 90 days as a LPR.

If you have an informal separation, 8 CFR 319.1 says, "Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union."

Be careful and don't give them a reason to deny you or to retroactively denaturalize you based on misrepresentation of a material fact. In other words, don't lie to them or hide anything. As it is, the worst case is that you might have to wait another couple of years for naturalization, but if you lie, conceal, or misrepresent a material fact, you could become permanently ineligible and deportable.

[ilovecookies 0]

why does she have a protection order against you? USCIS might check on that!! as far as i know, you have to be of "good moral character", so i don't know how that will affect your case.

anyway i am sorry your marriage is not working out and wish you the best on your citizenship journey.

[YankeeDoodle 0]

Thanks guys for your input. So, I guess I don’t need to withdraw my N-400.

Another question, she has filed for "Court Ordered - Protection", I believe same as restraining order against me which I'll contest when the hearing for that happens. But, does her filing jeopardize my legal and lawful image for the interview? Do I need to take any deposition from County clerk for my interview?

Say if I follow the “don’t tell unless asked” policy, and I do get my citizenship, can my wife (or may be ex at that time) alert the authorities and have them revert my status on the grounds that at the time of interview and oath our marriage was in terminal state.

This is a really tough time for me. Any help or advice is greatly appreciated.

Yankee

[Nikita2Charles 31]

Sorry to hear things didn't work out, Just be Honest, like the earlier post mentioned, the worst thing that can happen, they will tell you wait 5 years until you can fill out another N-400 citizenship, times fly, you have already completed 3 years, so basically you are less than 1year 9 months away from filing again if things doesn't work out.

Thanks guys for your input. So, I guess I don’t need to withdraw my N-400.

Another question, she has filed for "Court Ordered - Protection", I believe same as restraining order against me which I'll contest when the hearing for that happens. But, does her filing jeopardize my legal and lawful image for the interview? Do I need to take any deposition from County clerk for my interview?

Say if I follow the “don’t tell unless asked” policy, and I do get my citizenship, can my wife (or may be ex at that time) alert the authorities and have them revert my status on the grounds that at the time of interview and oath our marriage was in terminal state.

This is a really tough time for me. Any help or advice is greatly appreciated.

Yankee

[lucyrich 19]

Say if I follow the “don’t tell unless asked” policy, and I do get my citizenship, can my wife (or may be ex at that time) alert the authorities and have them revert my status on the grounds that at the time of interview and oath our marriage was in terminal state.

Yes, that is at least a possibility. Google "administrative denaturalization" for details. Here's one quote from a lawyer's site.

The INS' rule states that it may reopen a naturalization proceeding and revoke naturalization if it obtains "credible and probative evidence that (1) shows that the Service granted the naturalization by mistake; or (2) was not known to the service Officer during the original proceeding; and (i) would have had a material effect on the outcome of the original proceeding; and (ii) would have proven that (A) the Applicant's application was based on fraud, misrepresentation or concealment of a material fact; or (B) the applicant was not, in fact, eligible for naturalization."

Their burden of proof in this matter is pretty low, at least for the first two years after you've been naturalized.

As has been pointed out, you've done absolutely nothing wrong, and you're at least on the path to citizenship based on the "5 years as an LPR" rule, regardless of how the marriage turns out.

The decision about what to reveal and when is yours, but if I were you, I'd want to make sure everything was out in the open for them to know about well before they made any sort of decision. The consequences of being naturalized and then administratively denaturalized are too ugly to be worth the risk, IMO. If you reveal everything and they deny based on the fact that your marriage is no longer together, you've still done absolutely nothing wrong and you've got a safe (but slightly longer) route to permanent citizenship that you know will "stick".

If you're not sure how to proceed, you might want to consult with one or more immigration attornies to discuss the consequences of various options.

[YankeeDoodle 0]

Thanks Nikita2Charles and LucyRich for your support and advise. I totally agree with both of you and believe telling them and bringing everything out will be a good choice.

You are right there isnt much to loose, the worst that can happen is that I'll have to wait for another 2 yrs.

I guess I can stop worrying abt this issue for now and should start posting on other forums where there is advise for dads who are denied of the kids by their evil spouses :-)

Thanks guys, this forum is really helpful to a lot of people. keep up the good work.

Yankee

[YankeeDoodle 0]

Ilovecookies: why does she have a protection order against you? USCIS might check on that!! As far as I know, you have to be of "good moral character", so I don't know how that will affect your case.

Because she figured that would be the easiest way for her to give me immense pain and deny me of my child. And supposedly she fears that I'll take my child out of USA and may never return. Other reason, so that she can see me squirm without my child and probably she is hoping that it will convince me to tolerate all of her bullsh!t and continue to live with her. Just her tactic to torture me and possibly get back to me.

As far as "Good Moral" character is concerned, I dont know how it will be percieved by USCIS. As far as protection order is concerned, any one can get one against anyone, its the hearing in the court that willl decide if it needs to be continued or removed or if it was firvolous, which I am waiting for.

[diadromous mermaid 36]

Ilovecookies: why does she have a protection order against you? USCIS might check on that!! As far as I know, you have to be of "good moral character", so I don't know how that will affect your case.

Because she figured that would be the easiest way for her to give me immense pain and deny me of my child. And supposedly she fears that I'll take my child out of USA and may never return. Other reason, so that she can see me squirm without my child and probably she is hoping that it will convince me to tolerate all of her bullsh!t and continue to live with her. Just her tactic to torture me and possibly get back to me.

As far as "Good Moral" character is concerned, I dont know how it will be percieved by USCIS. As far as protection order is concerned, any one can get one against anyone, its the hearing in the court that willl decide if it needs to be continued or removed or if it was firvolous, which I am waiting for.

Could be, but my experience is that in order to secure an ex parte order of protection it requires that the petitioner demonstrate some credible fear of harm to his or her person. Wise to keep your nose clean, in the meantime, regardless of how spurious you see her claim.

[russian_armenian 4]

Thanks for info, Lucyrich. Looks like they are more carefull with administrative denaturalization since 2001 after court decision on Gorbatch.

What I gather, for 3 years N-400 "marriage" means "residing together". So, in case OP wife can show that they have been living separately (even without the intention of divorce) at time of interivew, it is better to wait 2 more years? Right? Some lawyers write that couple must live together. Even if due to work they live separately, N-400 might be denied. Maybe I got wrong info. Somebody would correct me.

Say if I follow the “don’t tell unless asked” policy, and I do get my citizenship, can my wife (or may be ex at that time) alert the authorities and have them revert my status on the grounds that at the time of interview and oath our marriage was in terminal state.

Yes, that is at least a possibility. Google "administrative denaturalization" for details. Here's one quote from a lawyer's site.

The INS' rule states that it may reopen a naturalization proceeding and revoke naturalization if it obtains "credible and probative evidence that (1) shows that the Service granted the naturalization by mistake; or (2) was not known to the service Officer during the original proceeding; and (i) would have had a material effect on the outcome of the original proceeding; and (ii) would have proven that (A) the Applicant's application was based on fraud, misrepresentation or concealment of a material fact; or (B) the applicant was not, in fact, eligible for naturalization."

Their burden of proof in this matter is pretty low, at least for the first two years after you've been naturalized.

As has been pointed out, you've done absolutely nothing wrong, and you're at least on the path to citizenship based on the "5 years as an LPR" rule, regardless of how the marriage turns out.

The decision about what to reveal and when is yours, but if I were you, I'd want to make sure everything was out in the open for them to know about well before they made any sort of decision. The consequences of being naturalized and then administratively denaturalized are too ugly to be worth the risk, IMO. If you reveal everything and they deny based on the fact that your marriage is no longer together, you've still done absolutely nothing wrong and you've got a safe (but slightly longer) route to permanent citizenship that you know will "stick".

If you're not sure how to proceed, you might want to consult with one or more immigration attornies to discuss the consequences of various options.

[lucyrich 19]

Thanks for info, Lucyrich. Looks like they are more carefull with administrative denaturalization since 2001 after court decision on Gorbatch.

What I gather, for 3 years N-400 "marriage" means "residing together". So, in case OP wife can show that they have been living separately (even without the intention of divorce) at time of interivew, it is better to wait 2 more years? Right? Some lawyers write that couple must live together. Even if due to work they live separately, N-400 might be denied. Maybe I got wrong info. Somebody would correct me.

I think you're more or less right, but any time there's a separation without divorce, it becomes a grey area. The USCIS published interpretations may provide some insight, and they do show some examples where separation won't necessarily prohibit naturalization under 319(a).

http://www.uscis.gov/propub/ProPubVAP.jsp?...3187569d01e667a

Click on that link and click on 319.1. Then scroll down to the section titled "Marital union for the purposes of 319(a)".

Note that the published interpretations suggest that only a valid marriage is required between petition filing and the oath, so that might suggest that that YankeeDoodle is OK.

There are a several examples of what has been and hasn't been found to be OK, but unless your situation is exactly like one of those described, it's a little hard to draw a definitive conclusion about what will be judged to be OK. That's why good lawyers make big bucks figuring these things out.

If you're in somewhat of a grey area, there's no guarantee the person adjudicating your application will initially see things your way, even if you're eventually proven right. You may be initially denied and have to appeal, and by the time you go through the whole process and prove that you were approvable, it may take longer than it would have taken just to wait until you were out of the grey area. Or, you may be initally approved and then later administratively denaturalized, in which case you may be forced to go through an expensive and time consuming appeal process. If you read the interesting court cases, often something like that happened, because that's the kind of case where the immigrant really fights it as far through the court system as possible.

As a practical matter, many people would just prefer to stay far away from any grey areas, and wait until naturalization is very clearly approvable.

[YankeeDoodle 0]

LucyRich, You've got really great depth of knowledge on immegration issues. That link does provide little bit more clarity and details. Thanks for your advise and information. That adminstrative denaturalization seems like a very vague rule and will be a b!tch too deal with for anyone. So, I've decided to tell everything how it is and watch how the cookie crumbles.

Thanks everyone for your suggestions.

YankeeDoodle

[russian_armenian 4]

Thanks, Lucyrich.

I went through legislation and posted some cutoff since so many people ask the same questions and it is all in this regulation.

I gather that separation due to work is not a problem as long as couple lived together for most part. I was just afraid that if I get a job in future in other city and would have to move there before husband, what would happen to pending N-400? I still have to check if N-400 would be transferred to other jurisdiction upon address change.

Thanks for info, Lucyrich. Looks like they are more carefull with administrative denaturalization since 2001 after court decision on Gorbatch.

What I gather, for 3 years N-400 "marriage" means "residing together". So, in case OP wife can show that they have been living separately (even without the intention of divorce) at time of interivew, it is better to wait 2 more years? Right? Some lawyers write that couple must live together. Even if due to work they live separately, N-400 might be denied. Maybe I got wrong info. Somebody would correct me.

I think you're more or less right, but any time there's a separation without divorce, it becomes a grey area. The USCIS published interpretations may provide some insight, and they do show some examples where separation won't necessarily prohibit naturalization under 319(a).

http://www.uscis.gov/propub/ProPubVAP.jsp?...3187569d01e667a

Click on that link and click on 319.1. Then scroll down to the section titled "Marital union for the purposes of 319(a)".

Note that the published interpretations suggest that only a valid marriage is required between petition filing and the oath, so that might suggest that that YankeeDoodle is OK.

There are a several examples of what has been and hasn't been found to be OK, but unless your situation is exactly like one of those described, it's a little hard to draw a definitive conclusion about what will be judged to be OK. That's why good lawyers make big bucks figuring these things out.

If you're in somewhat of a grey area, there's no guarantee the person adjudicating your application will initially see things your way, even if you're eventually proven right. You may be initially denied and have to appeal, and by the time you go through the whole process and prove that you were approvable, it may take longer than it would have taken just to wait until you were out of the grey area. Or, you may be initally approved and then later administratively denaturalized, in which case you may be forced to go through an expensive and time consuming appeal process. If you read the interesting court cases, often something like that happened, because that's the kind of case where the immigrant really fights it as far through the court system as possible.

As a practical matter, many people would just prefer to stay far away from any grey areas, and wait until naturalization is very clearly approvable.

[venusfire503 54]

I guess I can stop worrying abt this issue for now and should start posting on other forums where there is advise for dads who are denied of the kids by their evil spouses :-)

Thanks guys, this forum is really helpful to a lot of people. keep up the good work.

Yankee

If you are being denied visitation, or you think the kids' mother is trying to turn them against you, you really DO want to do something about that right away. I just read a book called "Divorce Poison" by Dr. Richard A. Warshak. It's not very expensive to buy if you can't find a copy at your local library. There was very good information in there. Best of luck!