Marital Status Question from USCIS?

[rokki 0]

Got a RFE for my N400 application. I am bit confused how to reply them for my situation 
----- 
Please submit any court orders or decrees to show you are legally separated or documents to show 
your marriage has been dissolved. 

- You may choose to provide a statement on your current marital status and if you have pursued 
a divorce with your spouse. 
----- 
I have been separated 4 years ago when i used to live in Pennsylvania. I filed a divorce petition there but later abandoned the process. As of now my spouse still living in Pennsylvania and I moved to California 3 years ago. 

Please note that I do not have any court orders/decrees. 

So, I am writing a letter to USCIS detailing the situation. What should be my marital status? "Married or Separated. Or should i say married but separated? 

Originally in my n400 application i choose "separated" but during my interview the IO changed it to married when I explained my situation.

[Going through 5,668]

42 minutes ago, rokki said:

Got a RFE for my N400 application. I am bit confused how to reply them for my situation 
----- 
Please submit any court orders or decrees to show you are legally separated or documents to show 
your marriage has been dissolved. 

- You may choose to provide a statement on your current marital status and if you have pursued 
a divorce with your spouse. 
----- 
I have been separated 4 years ago when i used to live in Pennsylvania. I filed a divorce petition there but later abandoned the process. As of now my spouse still living in Pennsylvania and I moved to California 3 years ago. 

Please note that I do not have any court orders/decrees. 

So, I am writing a letter to USCIS detailing the situation. What should be my marital status? "Married or Separated. Or should i say married but separated? 

Originally in my n400 application i choose "separated" but during my interview the IO changed it to married when I explained my situation.

That's interesting the IO changed your marital status...did you explain to him/her that you'd been not living in marital union with your spouse for 3-4 years?  Do you both still co-mingle financially since being separated?  

 

I assume you filed the N400 under the 3-year rule---in your explanation, I would suggest making note of the date you married, and the date you informally/formally separated from your husband (ie. the date you stopped living as a married couple, not necessarily the same date you physically stopped living together).

 

Since you have not been living in marital union with your spouse, and IF you filed your N400 under the 3-year marriage rule...I honestly don't see how you would be approved since you would no longer have been eligible for Naturalization until you reached the 5-year residency rule to file, unless you meet certain criteria (I have posted below USCIS policy on that).  The RFE may be in order for them to finalize a decision towards a denial, unfortunately, if not responded to appropriately.

 

From the policy manual IOs use to determine an approval or denial https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter2.html 

 

D. Marital Union and Living in Marital Union

1. Married and Living in Marital Union

 

In general, all naturalization applicants filing on the basis of marriage to a U.S. citizen must continue to be the spouse of a U.S. citizen from the time of filing the naturalization application until the applicant takes the Oath of Allegiance. In addition, some spousal naturalization provisions require that the applicant “live in marital union” with his or her citizen spouse for at least 3 years immediately preceding the date of filing the naturalization application. ^[19] USCIS considers an applicant to “live in marital union” with his or her citizen spouse if the applicant and the citizen actually reside together.

 

An applicant does not meet the married and “living in marital union” requirements if:

 

•The applicant is not residing with his or her U.S. citizen spouse at the time of filing or during the time in which the applicant is required to be living in marital union with the U.S. citizen spouse; or

•The marital relationship is terminated at any time prior to taking the Oath of Allegiance.

If the applicant ceases to reside with his or her U.S. citizen spouse between the time of filing and the time at which the applicant takes the Oath of Allegiance, the officer should consider whether the applicant met the living in marital union requirement at the time of filing.

 

There are limited circumstances where an applicant may be able to establish that he or she is living in marital union with his or her citizen spouse even though the applicant does not actually reside with the citizen spouse. ^[20] 

 

In all cases where it is applicable, the burden is on the applicant to establish that he or she has lived in marital union with his or her U.S. citizen spouse for the required period of time. ^[21] 

 

 

3. Failure to be Living in Marital Union due to Separation

Legal Separation

 

A legal separation is a formal process by which the rights of a married couple are altered by a judicial decree but without eliminating the marital relationship. ^[28] In most cases, after a legal separation, the applicant will no longer be actually residing with his or her U.S. citizen spouse, and therefore will not be living in marital union with the U.S. citizen spouse.

 

However, if the applicant and the U.S. citizen spouse continue to reside in the same household, the marital relationship has been altered to such an extent by the legal separation that they will not be considered to be living together in marital union.

 

Accordingly, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are legally separated. ^[29] An applicant who is legally separated from his or her spouse during the time period in which he or she must be living in marital union is ineligible to naturalize as the spouse of a U.S. citizen. 

 

Informal Separation 

 

In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse.

 

However, if the U.S. citizen spouse and the applicant continue to reside in the same household, an officer must determine on a case-by-case basis whether an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen. ^[30] Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation suggests the possibility of marital disunity.

 

Factors to consider in making this determination may include:

 

•The length of separation;

 

•Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;

 

•Whether the spouses intend to separate permanently; and

 

•Whether either spouse becomes involved in a relationship with others during the separation. ^[31] 

[rokki 0]

Thanks for the response. I applied under 5 years rule. Also, I explained the whole thing to IO including the living apart situation and financially we don't co-mingle

[Going through 5,668]

5 hours ago, rokki said:

Thanks for the response. I applied under 5 years rule. Also, I explained the whole thing to IO including the living apart situation and financially we don't co-mingle

Ok I was under the impression you applied under the 3 year rule.  Your marital status cannot be used as the SOLE determining factor for any N400 denial since you applied (and presumably are eligible) under the 5-year residency rule.  What did the IO say at the end of your interview in terms of approval/denial?  How did the interview go, otherwise?

 

Curious why you haven't officially divorced your spouse? You don't have to respond to that here, only it would make future relationships for you a bit easier if you weren't already legally tied to someone else (especially if anyone in the future wanted to propose to you  ).