Applying for citizenship based on 5 year rule

[maria0909 0]

Hi guys, thank you so much for reading this and helping me out. I am getting ready to apply for citizenship based on the 5 year rule. I originally obtained my GC through marriage. I came here on a holiday in 2005 after graduating high school in Colombia, met the guy of my dreams and got married. We went through the GC process and removed the conditions in 2008. I started going to college for engineering. I transfered to the university to continue my career after getting my associates degree from the community college in his hometown. He couldnt get a transfer from his job, or get a new one so we decided that he would stay and come to visit on the weekends (only 3 hour drive) until he could move with me to the new city. After 6 months the visits became less frequent and we grew apart. He stopped visiting and calling, and well basically changed. I wanted to be a professional engineer and he did not aspire to anything. He got arrested a couple of times for drugs and a DUI, overall he is completely different man.

We have not lived at the same place since 2009. We havent gotten a divorce because I basically cannot afford it being a student and he wont pay for it. we filed our taxes married filing jointly for 2009. This year I called him to file our taxes and he informed me that he had already filed as single with his tax preparer since we are separated. I had no choice but to file single as well. Furthermore, he supposedly bought a house and claimed the $7500 first home buyer credit under both of our names in 2008 by sending a tax correction after we had filed. I had no idea about this and now I owe the IRS $3500 over the next 15 years. I tried to correct this with the IRS but they told me it was a civil matter...as you can see it has not been easy dealing with him.

My questions are:

1. Would the fact that my taxes for 2010 say "single" have any impact on my naturalization?

2. Do I need to bring any documentation other than our marriage certificate?

3. Would they ask me about our separation and could it impact my application?

Sorry for the long post, I hope someone can give me some advice.

[OnMyWayID 1,489]

Curious.. On your taxes why didn't you file "Married filing seperatly"? You can always go back and amend your taxes.. Also since he took the tax credit in both of your names he could not have filed as single.. There are some issue to address with the paperwork - somethign there does not make sense.

[maria0909 0]

Curious.. On your taxes why didn't you file "Married filing seperatly"? You can always go back and amend your taxes.. Also since he took the tax credit in both of your names he could not have filed as single.. There are some issue to address with the paperwork - somethign there does not make sense.

Thank you for the reply. He got the credit on out 2008 taxes after amending them without my consent. When I said I filed single is on my 2010 taxes and this was because he had already filed his taxes as single, per his tax preparer. So because of this reason I could not file married filing separatedly. He does not want to ammend his taxes for this year so Im stuck.

[NickD 203]

In most states you are liable for each others bills until that divorce is final, with the federal IRS, should file married separate returns, the big deal on this is answering all of the N-400 in a very truthful manner. You already know you are in debt with the IRS for is wrong doing, that can be settled during your divorce.

Only proof my stepdaughter needed for her five year, was her green card, but you have some circumstances to deal with, she didn't that may come up during your interview. Like getting married in good faith. Hard to say, you may get one of those RFE things to back up your story. Still feel these interviews are highly subjective, outcome can be different if you get a woman in the same boat as you or a man like your spouse.

Feel like you should be concentrating on a divorce if you cannot make amend with your husband rather than US citizenship at this time. Now you have to explain as to why you owe the IRS back taxes.

[maria0909 0]

In most states you are liable for each others bills until that divorce is final, with the federal IRS, should file married separate returns, the big deal on this is answering all of the N-400 in a very truthful manner. You already know you are in debt with the IRS for is wrong doing, that can be settled during your divorce.

Only proof my stepdaughter needed for her five year, was her green card, but you have some circumstances to deal with, she didn't that may come up during your interview. Like getting married in good faith. Hard to say, you may get one of those RFE things to back up your story. Still feel these interviews are highly subjective, outcome can be different if you get a woman in the same boat as you or a man like your spouse.

Feel like you should be concentrating on a divorce if you cannot make amend with your husband rather than US citizenship at this time. Now you have to explain as to why you owe the IRS back taxes.

Thanks for you reply. I wonder why you say that I could get an RFE? I already went through the process of removing my conditions of residency back in 2008 and I was happily married back then. We did not separate until 2009, and he filed single last year. I dont really owe the IRS taxes. The credit he got is a loan that he has to repay over 15 years, but half of that is under my social because we were married. Is not the same as owing back taxes though.

So do they concentrate on my marriage even after you wait the 5 years to apply for citizenship? I would like to get my citizenship now because of the type of engineering I do, it required a security clearance.

Thank you.

[NickD 203]

I used the word "may" get an RFE, again all depends on your IO, could be just a ten minute interview and you are done.

Just looking at Part 8, nothing about being married but separated, and for the five year, don't have to prove you are living and paying bills together. This has to be your judgment. IO 'may" ask you about your marriage in passing, then may not.

[maria0909 0]

I used the word "may" get an RFE, again all depends on your IO, could be just a ten minute interview and you are done.

Just looking at Part 8, nothing about being married but separated, and for the five year, don't have to prove you are living and paying bills together. This has to be your judgment. IO 'may" ask you about your marriage in passing, then may not.

Thank you NickD. Just one more question, do you think that the fact my tax return says "single" for 2010 would have any impact on this process? I talked to him but he does not want to amend the tax return to reflect "married filing separately".

Thank you!

[OnMyWayID 1,489]

I don't think he has a choice.. It is illegal to claim single if you are married. You should be able to amend yours in any case.. It might trigger an audit of his tax return so you should warn him, maybe that will get him to make the change.

Good luck to you.

[NickD 203]

Thank you NickD. Just one more question, do you think that the fact my tax return says "single" for 2010 would have any impact on this process? I talked to him but he does not want to amend the tax return to reflect "married filing separately".

Thank you!

Yes, its only on the joint return both of you must sign that everything is true and correct. With the single or filing separate returns, you are only responsible for what you stated. The rest of it is his problem, not yours.

Complete honesty cannot be over emphasized when filing the N-400.

"Since becoming a Lawful Permanent Resident, have you ever failed to file a required Federal

state or local tax return?"

That word required can be interpreted as filing a correct one. I know its loose, but then you are dealing with the federal government

[Jeff & Senia 1]

I'd amend your 2010 return using Form 1040X to file as married filing separately (you don't mention a child, so I'm assuming that head of household is not an option). That he filed as single has no bearing on you filing as married filing separately (you were still legally married at 11:59 p.m. on 12/31/2010). In the explanation section of the Form 1040X, just state that on the originally filed return you inadvertantly checked the "Single" filing status box when in fact you were married at the end of the tax year.

You chose to use the word "supposedly" in re to his buying a house in 2008, why is that? One can also infer that he forged your signature on the amended 2008 return where he claimed the first time homebuyer credit...is that correct? Also correct to assume that the refund received for taking the first time homebuyer credit on the amended 2008 return was not shared with you?

If you can share a little more about "supposedly" bought a house, your signature on the 2008 amended return, and where did the 2008 refund from the amended return go....then I can provide you some additional insight on your options pertaining to your tax situation.

Hate to say it, but it's best to be blunt.....this former dream guy sounds like a real you know what!!!!

[Szilvia74 3]

I don't want to sound mean but you basically lied on your tax return. I still don't understand why YOU didn't file married filing separately even if your husband filed as single.

You will have a lot of explaining to do on the citizenship interview. All you can hope for is a nice IO.

Amending your tax return is definitely a step to the right direction.

[winterpassing 0]

I wasn't aware that you needed to bring tax returns to the interview if you file under the 5-year-rule. My green card was awarded through marriage as well, so should I make sure to bring any transcripts from the past 3 years to the interview just to be safe?

[Brother Hesekiel 2,236]

Since you are applying under the 5-year rule, your martial status, whether separated, living in sin with a bunch of playmates, or bangin' monkeys, is completely irrelevant, as is your marriage certificate.

All that matters is that you filed an income tax return every year, have the tax transcripts to prove it, and, in case you owe the IRS bloodsuckes $3,500 over a period of 15 years, that you have a written arrangement about this. What they basically want to make sure of is that you are on good terms with Uncle Sam. A payment plan would be sufficient for that purpose.

[Szilvia74 3]

You need not to worry about the $3500, that's a first homebuyer's credit. As far as I know there is no written payment plan there. I have the credit too because we bought a house and I didn't even mention on the interview. It's a CREDIT the IRS gave you. You only OWE money to the IRS if you didn't include it in your taxes each year (started paying it back). At the same time you have to somehow figure out what you need to do because your husband illegally took that IRS credit. Is your name on the title (of the house)? Or do they assume you own the house because you are married to him? You need to clear up that mess.

Again lying on a tax return or owing money to the IRS (without being able to explain why) is a serious offense in the eyes of the USCIS...

Since you are applying under the 5-year rule, your martial status, whether separated, living in sin with a bunch of playmates, or bangin' monkeys, is completely irrelevant, as is your marriage certificate.

All that matters is that you filed an income tax return every year, have the tax transcripts to prove it, and, in case you owe the IRS bloodsuckes $3,500 over a period of 15 years, that you have a written arrangement about this. What they basically want to make sure of is that you are on good terms with Uncle Sam. A payment plan would be sufficient for that purpose.

[Jeff & Senia 1]

Hi Maria,

Just checking-in to see if you'd followed-up and read the other responses. I see that you've gotten some good feedback from Just Bob pertaining to applying for citizenship under the 5-year rule. Also, I can tell from your previous posts, you are not confused about how the First Time Homebuyer's Credit for homes purchased after 4/8/08 and prior to 01/01/09 works, i.e., that you pay back the credit taken on your 2008 return interest free over a 15-year period starting with the 2010 tax year return. You didn't say anything about it, but I'm guessing you paid your 1/2 for 2010, $250, on the 2010 return you filed for yourself? Each year you are supposed to recieve IRS Notice CPO3a, "Repaying your First-Time Homebuyer Credit", that tells/reminds you of the portion of the original credit you need to "recapture" on the current year's tax return. I'm curious, did you receive such a notice in advance of filing your 2010 return?

So with that out of the way, I think it is safe to assume that you correctly understand that the annual repayment of your share of that credit over 15 years (14 years left now since 2010 was the first repayment year) does not show-up as an outstanding or past-due tax obligation/liability. It's just an additional $250 tax (1/2 of the $500 x 15 years) each year and becomes due with that particular current year's tax return.

My concern, as a Tax Professional, is that while it's apparent that you've read the basic rules concerning the 2008 First Time Homebuyer's Credit, you might not be fully familiar with all of the triggers that can take place upon certain events, i.e., when the home stops being your personal residence, when it is sold, when your ownership share is transferred to the other spouse, etc., etc. Additionally, I also have concern that you may feel like you are obligated to payback 1/2 of the credit when it was taken on a house "supposedly" purchased, and claimed on an amended return that you had know knowledge about (i.e., your signature was forged). Lastly, I'm concerned that you felt it necessary to file your 2010 return as a "single" taxpayer instead of "married filing separately" because your estranged husband has led you to believe such base on his filing as being single.

You were not "stuck" with filing single because your estranged husband filed his return that way. If you were legally married on the last day of the tax year and did not maintain a home for a dependent child, then you should have filed as "married filing separately" regardless of how he filed his return. You are also not stuck with paying back 1/2 of $7,500 credit he claimed on the amended 2008 joint return if he did so frivolously without your knowledge.

You've stated that you've gone on to become a professional engineer, so I trust that you appreciate that there are times when it is best to seek advice from a professional with training, experience and expertise in a particular field. That's exactly what you should do concerning your current tax matters and quit relying on the advice of a guy who has claimed a tax credit on a home "supposedly" purchased by filing an amended joint return without your knowledge.