n400 - 3 year rule and marital union requirement

[n400applicant_007 0]

My wife (US Citizen by birth) and I have been married for 9+ years. We moved to the US in 2019 after I applied and got my LPR. I put in my n400 application earlier this year under the 3 year rule. We are in a stable marriage, and there is no marital disunity. We have a joint lease, file taxes jointly, have a joint bank account and she is on my insurance plan as well.

 

However technically, we don't meet the marital union requirement because she has spent most of her time outside the US the past 2 years. She is pursuing some research there which she is passionate about. We have seen each other a few times and she has visited me. One of the reasons I applied for my citizenship is so that I can spend more time with her in another country, without worrying about staying out of the US for too long.

 

I realise I should probably apply under the 5-year rule, but I am a bit desperate here. So I am evaluating the risk of going to the interview under my current circumstances. Once I have my interview date, I could ask my wife to come over and stay here for a few days around the interview, if that helps. But as far as I am aware, the State Dept doesnt track the travel history of US citizens. All other evidence I have points to her maintaining residence in the same place that I am. So I am hoping that I won't receive any pointed question and I don't have to lie under oath. Worst case, I could admit ignorance, get rejected and I re-apply under the 5-year rule.

 

Do folks have any advice here?

[EA and MK 48]

2 hours ago, n400applicant_007 said:

My wife (US Citizen by birth) and I have been married for 9+ years. We moved to the US in 2019 after I applied and got my LPR. I put in my n400 application earlier this year under the 3 year rule. We are in a stable marriage, and there is no marital disunity. We have a joint lease, file taxes jointly, have a joint bank account and she is on my insurance plan as well.

 

However technically, we don't meet the marital union requirement because she has spent most of her time outside the US the past 2 years. She is pursuing some research there which she is passionate about. We have seen each other a few times and she has visited me. One of the reasons I applied for my citizenship is so that I can spend more time with her in another country, without worrying about staying out of the US for too long.

 

I realise I should probably apply under the 5-year rule, but I am a bit desperate here. So I am evaluating the risk of going to the interview under my current circumstances. Once I have my interview date, I could ask my wife to come over and stay here for a few days around the interview, if that helps. But as far as I am aware, the State Dept doesnt track the travel history of US citizens. All other evidence I have points to her maintaining residence in the same place that I am. So I am hoping that I won't receive any pointed question and I don't have to lie under oath. Worst case, I could admit ignorance, get rejected and I re-apply under the 5-year rule.

 

Do folks have any advice here?

My understanding of the USCIS policy manual includes exceptions for not meeting the marital union requirement, including:

 

1) Required to serve in the armed forces

2) Required travel and relocation for employment.

 

It will be at the interviewing officer's discretion to evaluate if an exception can be made by evidence and proof you provide.

 

Is your wife employed and had to leave as a result?

 

Also, I don't want to be rude but I did not like the vibe you give off when you state "...the State Dept doesn't track the travel history of US citizens". Or when you state "I could admit ignorance". This sounds like you are trying to che the system and get away with something. Like pulling a fast one/hoping they don't catch yout. Sate Dept may not track US Citizens travel history, but DHS/CBP most certainly do. Just do things right the first time, and with full honesty. This is the only way to ensure success with US immigration.

Edited July 30, 2022 by EA and MK

[n400applicant_007 0]

42 minutes ago, EA and MK said:

My understanding of the USCIS policy manual includes exceptions for not meeting the marital union requirement, including:

 

1) Required to serve in the armed forces

2) Required travel and relocation for employment.

 

It will be at the interviewing officer's discretion to evaluate if an exception can be made by evidence and proof you provide.

 

Is your wife employed and had to leave as a result?

I believe you are referring to the "involuntary separation" condition here: https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

My wife left voluntarily and enrolled in a university program. So I don't believe that would apply.

 

42 minutes ago, EA and MK said:

Also, I don't want to be rude but I did not like the vibe you give off when you state "...the State Dept doesn't track the travel history of US citizens". Or when you state "I could admit ignorance". This sounds like you are trying to che the system and get away with something. Like pulling a fast one/hoping they don't catch yout. Sate Dept may not track US Citizens travel history, but DHS/CBP most certainly do. Just do things right the first time, and with full honesty. This is the only way to ensure success with US immigration.

I appreciate your feedback, and I didn't perceive it as rude.

I am obviously cognizant of the fact that I am not being fully forthcoming with all the facts. That's because It just seems completely arbitrary and unfair that I don't meet the marital union requirement because of a technicality.  Having said that, I don't intend to lie under oath or make false claims. I am just hoping to present the documents I have and let the officer make their decision. All I am hoping for is that the fact that my wife has spent a significant amount of time outside the US does not come up during the interview.

 

DHS/CBP do track travel history. But the impression I get from whatever I can find online is that USCIS can only query my travel data, but not hers.

[arken 4,197]

If you want to apply for it, go for it. If your spouse accompanies you for the interview, much better. Like you said, usually travel history of the USC isn't asked on N400 and usually IOs don't ask about that either. They usually ask if there's been any change on marital status (like divorce). So if not asked, no need to volunteer but if asked just be truthful. Good luck. 

[n400applicant_007 0]

54 minutes ago, arken said:

If you want to apply for it, go for it. If your spouse accompanies you for the interview, much better. Like you said, usually travel history of the USC isn't asked on N400 and usually IOs don't ask about that either. They usually ask if there's been any change on marital status (like divorce). So if not asked, no need to volunteer but if asked just be truthful. Good luck. 

Can my spouse accompany me for the interview? I thought there were restrictions on people one could bring with to the interview: https://www.boundless.com/immigration-resources/us-citizenship-interview/#bringing-other-people-to-your-interview

[arken 4,197]

The link you are referring to is for representatives.

For citizenship via marriage, It's always a good idea for the usc spouse to accompany during the n400 interview. Some uscis offices may not allow it especially during covid/post covid but still one can stay outside. In case of any doubts by IO, you can tell him that your spouse is outside (wasn't allowed in). Sometimes they may then allows usc spouse to enter the facility after IO's permission. 

[Villanelle 4,121]

7 hours ago, n400applicant_007 said:

I believe you are referring to the "involuntary separation" condition here: https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

My wife left voluntarily and enrolled in a university program. So I don't believe that would apply.

 

I think you are interpreting the definition of involuntary wrong. Remember all of the wording they use has specific definitions attached which may differ from normal non legal definitions that first come to mind.

 

I believe the phrase involuntary separation applies here as your wife did not voluntarily leave the marriage (put distance between you all) but rather outside forces (job, school) was the sole cause of the distance.  Does that make sense? The separation was not a voluntary one where she chose to live as far away as she could. It wasn't her fault her job or school was located so far away and her attending it doesn't/didn't mean the marriage isn't valid. 

 

The key word you posted in your snippet about the exception is 'required'. If you can show something was required then its not a voluntary choice on your part. 

 

Also there are no penalties to being denied citizenship besides the actual denial. You don't lose LPR status, you simply lose the fees you paid for the n400 and are told to apply again when you do qualify. IMO you shouldn't attempt to minimize or conceal this but rather bring proof establishing this program or course had to be completed there- hence it was required (not a voluntary choice on her part). 

 

 

[Family 3,549]

Because USCIS limits their interpretation of marital union as “living under the same roof” ( and although it can and has been successfully challenged) , you will have a battle on your hands.

In your case they don’t even need to look deeper than the N-400 itself , if you disclose your wife’s physical address overseas ( at current program) and any informal question Re wife ‘s employment/ whereabouts will bring up the issue. 

Therefore if you decide to file under the 3 year, then made the argument AT FILING, include case cites where USCIS has lost in its application of the “ bedroom test “ ( some attached in link) and Good Luck. Worth Trying 

 

 

N400 Case Denied for 3 years marital union after evidence submitted

By CadeMcNown,  April 7 in US Citizenship General Discussion 

[dnyal 32]

10 hours ago, Family said:

Because USCIS limits their interpretation of marital union as “living under the same roof” ( and although it can and has been successfully challenged) , you will have a battle on your hands.

In your case they don’t even need to look deeper than the N-400 itself , if you disclose your wife’s physical address overseas ( at current program) and any informal question Re wife ‘s employment/ whereabouts will bring up the issue. 

What I gather from the OP is that their wife seems to live with them, as in share a residence. Otherwise, why would they both share a lease like OP says? It seems she’s constantly going to different places because of her research job, yet she maintains residence with her spouse at their home (this doesn’t mean, however, that they have to be together). If this is the case, that the wife keeps residence at the same address as her spouse (i.e., she uses it legally for her bank documents, taxes, voter registration, etc.), then OP doesn’t have to claim “ignorance.” She legally resides at their joint address, especially if she often travels back to be with her spouse for periods of time. This has even more weight if they file taxes together using OP’s address. She voluntarily took a job that requires her to relocate, like somebody else pointed out. It’s not the same as she voluntarily relocating for some other reason.

 

Like yet another person pointed out, the most sensible approach here is not to volunteer any information. So, ask your wife to come with you, bring pictures of you two (also keep some Skype screenshots at hand in case her living away comes up), and restrict yourselves to honestly answer only what is asked. If your wife usually lists your joint address on everything she does, it is proof that she considers the place you two rent her home. Make sure that she bring paperwork that shows her relocation is necessary for her job (for instance, some employer document that states that she would need to go to place X if she wants to do research on something). You mentioned your wife is a researcher, so you may qualify for an exemption anyway (should the subject come up) if she works for one of the institutions listed here.

[Villanelle 4,121]

I don't think the thread linked above is a relevant comparison to the OPs scenario. In the linked thread, for those who haven't read it, the immigrant spouse came on the CR. They filed the n400 the first day eligible in the 90 day window. According to USCIS they are ok in showing LPR for 3 years but have an issue in showing marital union for 3 years as immigrant was technically only in the US for 2y 9m with spouse upon submission. USCIS was going to consider the time they lived together overseas immediately prior to the visa entry but unfortunately they were a few days short of having been together for the 3 month period. 

 

N400 requires you to show 3yrs of LPR and marital union. The purpose of the CR is family reunification which in basic terms means your family is not living united and the reuniting begins when they enter.  So the OP needed to show for the 3 months prior to entry they lived in union which he failed to as it doesn't appear he was living overseas, just visiting. USCIS would have considered his final trip as living rather then visiting but it wasn't long enough. 

 

This is a totally different scenario than the OP here. They have an established home/union,  it's just that unfortunately one spouse has to involuntarily be physically in a different location.

 

As for how to present or what to present- the best advice is for people to handle it whatever way makes them the most comfortable. Encouraging a soft spoken person to be demanding or telling an outspoken person they need to stay quiet- well its not going to be sincere. They are going to be uncomfortable and nervous and make a bad impression. Being sincere and honest matters. Of course behave appropriately, polite, respectful, but be genuine. 

 

In general it's never a good idea to go into this kind of situation telling the person interviewing you how to do their job or attempting to go all 'karen' and rattle off policy and demanding how they should be interpreting it. 

 

So there is a few ways of handling this, depending on what the OP is most comfortable with. 

 

- submitting everything and just letting them sort it out. This means leases, work contracts, school records, whatever it is- just the basic paperwork, no explanations and let them connect the dots. This means in the interview the OP would have to be prepared to speak up and argue their position of qualifying if the Officer is connecting the dots unfavorably. 

 

-submitting everything with some type of explanation. How firm you want to be again is subjective. It can be in a more passive but assuming tone ie here is the evidence supporting we had a valid marital union. Or a more aggressive tone- ie you must accept this and heres various policy snippets and case law insisting you have to.  

 

Personally I would do the less aggressive heres all my evidence and how it should be connected approach upon filing. They will review it and hopefully agree but if not I would be able to argue harder in the interview. I figure starting hard leaves you no where to go. Starting too soft (not offering any explanation or direction) seems like a waste of time or a gamble hoping they see it the way you want them to. 

[Family 3,549]

On 7/29/2022 at 9:55 PM, n400applicant_007 said:

However technically, we don't meet the marital union requirement because she has spent most of her time outside the US the past 2 years. She is pursuing some research there which she is passionate about. We have seen each other a few times and she has visited me

Personally I don’t think a 9 year marriage should be under scrutiny for marital union ,  but OP is clearly aware the 3 year rule looks at the immediately preceding application time frame. 
 

Thus no amount of proper “paper “ unity ( leases/acts/ stated permanent residence) can overcome the physical and limited “ bedroom “ test applied by USCIS..other than going in prepared to argue the statute does not support the limited interpretation,. 
 

Hoping the dots don’t get connected or praying to pull a rabbit out of the hat at interview and get Karen-esque at interview, are of course strategic ways to approach this…and so the Joys of DIY