lucyrich

1- You received your green card through the petition of a USC spouse, and are still happily married to her.

Doesn't apply to you.

Not quite right. In order to file under INA 319(a) there's no requirement whatsoever as to how you must have gotten your green card. You could have gotten the green card via work sponsor, green card lottery, cancellation of removal, whatever. samj doesn't say enough about his/her circumstances for us to say whether 319(a) might apply.

In answer to the original question, you can become a citizen as soon as you're eligible to check either box 2A or 2B of the N-400 (or 2C or 2D if applicable).

Box 2A says, "I have been a lawful permanent resident for at least five years".

Box 2B says, "I have been a lawful permanent resident for at least three years AND I have been married to and living with the same US Citizen for the last three years AND my spouse has been a US Citizen for the past three years".

Box 2C says "I am applying on the basis of qualifying military service".

Box 2D says "Other (Explain)". Most people won't qualify for this one. Don't check this box unless you are absolutely sure of the law which allows you to do so.

In either the box 2A or 2B case, you can file up to 90 days before meeting the permanent residence requirement, but you must meet all the other requirements on the day you file. For example, if you're checking box 2B, then on the day you file, you must have been married to and living with the same US Citizen for a full three years, and your spouse must have been a US Citizen for the past three years, but you could have been a permanent resident for as little as three years minus 90 days. See the box at the bottom of page 22 of the M-476 for details.

All of this is explained in the M-476. The N-400 Part 2 is one of the most concise correct explanations of when you can file, though.

http://www.uscis.gov/files/form/N-400.pdf

http://www.uscis.gov/files/article/M-476.pdf

I am confuse on how to go about applying for a Certificate of Citizenship for my 15 yr old son. He already has a US passport and we are currently living in the Philippines. I want to apply for him a Certificate of Citizenship (N-600K, for a child who regularly resides abroad), but one of the requirements is Evidence of Lawful Admission and Maintenance of Such Lawful Status (eg. I-94).

With that requirement, what evidence should I provide on his application?

And one of the questions in the application is Do you know of any prior application for a certificate of citizenship or US passport for this child? Yes or No?

The easy question first: Yes, you know of a prior application for a passport for your child, since you say he already has a US passport.

For the evidence of lawful admission, you would present his I-94 or his stamped immigrant visa. That brings up the point that the N-600K is for a child who wants to acquire citizenship via INA 322. It is NOT for someone who is already a citizen. One of the requirements to obtain citizenship via INA 322 is to be a lawfully admitted alien present inside the US.

So I think the N-600K does not fit your circumstances. But I could be wrong, since I do not know your circumstances. I can't say what you should do.

How did your son get a US passport? What made him eligible for that passport? What proof of citizenship did he supply with his passport application?

I suspect he became a citizen via another section of the INA, probably INA 320 or INA 301, maybe INA 301(g).

Another question I might ask is why do you want a certificate of citizenship? Normally a US passport, even an expired one, is considered proof of citizenship for virtually any purpose. Note that native-born US Citizens aren't eligible for a certificate of citizenship.

I just finish interview n ceremony, now i have to go to other country, can i travel with old passport which my original passport fm my country, will they ask green card when i go out of USA.

I was thinking to apply USA passport fm other country, because i can't wait for new passport n olso visa still in my old passport,

Any body has experience for that, it will really wonderful if can sharing . thanks.

In order to comply with INA 215(B) you've got to get a US Passport before leaving. You are now a US Citizen who has not yet obtained his first US passport. Like any other US Citizen without a US passport, you're supposed to get a US passport before travelling internationally. The fact that you also hold a valid foreign passport doesn't matter when you cross the US border (you may use another passport at another country's borders, though).

INA 215(B): Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.

But nobody ever checks or stamps a US (or any other) passport on the way out anyways so there's no way to enforce it.

As long as you don't apply for a US passport from foreign soil, you may be right.

If you apply for a US passport while abroad, they'll ask you whether you lost your old one, so that they can inactivate it. They'll search passport records and find you've never been issued a US passport. At that point, they'll know you violated the law, since you're present outside the US, and they know you were naturalized inside the US.

If you don't apply for a US passport while abroad, you'll have to re-enter the US with a foreign passport and no green card. Good luck with that, and good luck not getting caught in a misreprentation problem. US citizens are supposed to identify themselves as US citizens at US borders.

How seriously do they take such violations? I don't know. I'm not going to find out.

There are two main reasons for notifying the SSA of your citizenship status.

First, some benefits are not available to aliens.

Second, the USCIS e-verify system gets its data from the SSA database. Crazy as it may seem, the USCIS is the one that naturalized you, but they have no way to tell their own e-verify computers that you're a citizen. They find out your citizenship status by looking into the SSA computers, and if the SSA computers say you're an LPR, then you're an LPR according to USCIS e-verify. I'm not making this up.

Having the wrong status in e-verify may not be a huge problem right away. But if you apply for a job with an employer who uses e-verify at some time in the future (more and more employers are using e-verify, and more may be forced to do so in the future), you could show up as a mismatch. A non-citizen who presents a passport or naturalization certificate would be picked up by e-verify as a mismatch, because such a non-citizen couldn't possibly have a passport or naturalization certificate, therefore the documents must be fraudulent, because the government's computer couldn't possibly have made a mistake.

You don't want to wait until you get an e-verify mismatch to straighten this out. Go to the SSA office while your naturalization certificate and/or your new US passport is still handy and not locked away in a safe deposit box. There's no terribly urgent rush, but it's probably good to do in within a few weeks after naturalization.

I just finish interview n ceremony, now i have to go to other country, can i travel with old passport which my original passport fm my country, will they ask green card when i go out of USA.

I was thinking to apply USA passport fm other country, because i can't wait for new passport n olso visa still in my old passport,

Any body has experience for that, it will really wonderful if can sharing . thanks.

In order to comply with INA 215(b) you've got to get a US Passport before leaving. You are now a US Citizen who has not yet obtained his first US passport. Like any other US Citizen without a US passport, you're supposed to get a US passport before travelling internationally. The fact that you also hold a valid foreign passport doesn't matter when you cross the US border (you may use another passport at another country's borders, though).

INA 215(b): Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.

See the USCIS general guidelines page

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

In preparing your packet, please take note of the following:

* Do not use binders or folders that cannot be easily disassembled.

* Use ACCO fasteners to hold together thick or bulky applications or petitions. Two-hole punching the top of the material for easy placement in the file is appreciated.

* The use of tabs assist in locating items listed as attachments. The tabs should be placed on the bottom and not the side for ease in filing.

* Avoid using heavy-duty staples; instead use ACCO fasteners or heavy clips.

* Avoid submitting originals unless specifically required. Avoid submitting oversized documentation

Near the back of the M-476, there's a checklist of filing requirements. What we did is write a cover letter that more-or-less followed that checklist, omitting things that weren't relevant to our case.

To whom it may concern,

Please find the following submission of an N-400 application for naturalization and related documents.

* N-400

* Photocopy of both sides of the permanent resident card

* Two passport-style color photographs

* Fee of $###.##

* Copy of spouse's passport, as proof of spouse's citizenship

* ... etc. A line for each item included.

We used a two-hole punch at the top of every document, and bound it together with an Acco clip. Then at the bottom, we put a tab on each major item, writing a brief word or two describing the item.

By following the checklist format, it hopefully will help you organize everything in the order they're expecting it, and will help you avoid accidentally forgetting to include something that's important.

It's common for I-94s for things like a student visa to be issued with no fixed expiration date, but instead for "Duration of Status". This is often abbreviated "D/S". If your I-94 says "Duration of Status", or "D/S" on it, you should be able to write "D/S" on the I-485, and the immigration folks will know what this means.

A re-entry permit is not possible, since you must be physically present inside the US to file for one (you must file for it before you leave). But this case looks like it fits perfectly the requirements for a returning resident visa (SB-1)

http://travel.state.gov/visa/immigrants/info/info_1333.html

Permanent resident aliens who are unable to return to the United States within the travel validity period of the Alien Registration Receipt Card, or the Reentry Permit, may apply to the nearest U.S. consular office for a special immigrant Returning Resident (SB-1) visa. To qualify for such status aliens must show:--

That they were lawful permanent residents when they departed the United States. -- That when they departed they intended to return to the United States and have maintained this intent: -- That they are returning from a temporary visit abroad and, if the stay was protracted, that it was caused by reasons beyond their control and for which they were not responsible; and -- That they are eligible for the immigrant visa in all other respects.

I don't know enough about the SB-1 process to have any idea whether it's easier than starting over, but that's something to research.

You have two basic options to pursue. One, you could try and keep the green card already issued and prove that you have been residing in the US the entire time since the green card was issued. Two, you could say you stopped living in the US in October of 2008, and you now want to live there again, applying for a new visa.

I'm not sure which would be easier or quicker. You may want to contact a US consulate in Italy. You'll have to contact them anyway for your baby's consular report of birth abroad and US Passport. You may want to find out if you're eligible for direct consular filing of an I-130 to start a new immigrant visa process (do YOU have some sort of legal residency in Italy?)

If you get a new visa, and if your husband enters the US on the new visa after your second wedding anniversary, that conveniently avoids the whole I-751 removal of conditions process entirely, since his new status will not have conditions attached.

No leaving the US before getting AP or green card.

After getting the green card, you need to be sure she maintains her residence inside the US. The rules aren't hard and fast regarding exact dates, but depend at least a bit on the facts regarding whether she kept her principal residence inside the US. See the USCIS "maintaining permanent residence" page:

http://www.uscis.gov/portal/site/uscis/men...000082ca60aRCRD

Trips outside the US for more than six months will likely break continuous residence for the purpose of naturalization, but won't necessarily result in complete abandonment of permanent residence. But she'll have to demonstrate that she maintained her residence inside the US. If she's contemplating a trip of around six months or more, be sure to study up on the rules. Maybe even schedule a consult with an attorney to have the rules explained. And if she's contemplating becoming a citizen one day, be sure she understands how the trip will affect the date when she can apply for citizenship. The time to do this is BEFORE LEAVING!

A two or three month trip once a year shouldn't present a problem. But be aware that it's at least theoretically possible to lose residence in less time, so it would be prudent to have evidence that the nature of her trip overseas was temporary.

If she becomes a citizen, she can stay outside the US for as long as she wants without losing her citizenship. Citizenship is at least a few years away, though.

Point of clarification. You don't file anything for his citizenship. He is the one who files, alone. Obviously you can help him fill out the paperwork if you like, and you'll be on the joint tax returns, but other than that, your signature doesn't appear anywhere on the citizenship paperwork. It's his responsibility.

See the box at the bottom of page 22 of the M-476 for details on when he can file. Assuming the two of you have been married and living together for at least three full years on the date the application is mailed, then he can file as soon as 90 days before the three year anniversary of his first (conditional) green card. There is no deadline, so he can file as late as he wants to.

There's not much difference between the ease of getting one visa versus the other. The requirements are almost identical (with the obvious change that the K-3 or CR-1 requires a marriage license). The timelines are roughly similar, but I don't follow them closely these days, so you may want to check recent timelines. I'll warn you that timelines can change quickly and radically, so if you choose the type of visa that appears fastest on the date you file, it may be slow by the time you finish.

That's what happened to us -- when we started, it looked like a K-3 would be faster than a K-1, and a CR-1 would take years longer than either of the K choices. But after we filed for our K-3, things flip-flopped, and it turns out the K-1 would have been fastest, followed by the CR-1, and finally the K-3.

But really, it sounds like you may want to choose a visa based on the location and timing of the marriage more than anything else. And that seems like a good way to choose. Since it sounds like you have the opportunity to spend some time together in his country, it sure sounds like that would be a good idea, whichever visa opportunity you eventually pursue.

Kathryn,

I understand that somebody filing for naturalization "2 years early" based on his or her marriage to a USC has to provide evidence that the relationship is still intact (although I think that can be done with very little paperwork, as you suggested).

Here's my question though, and I apologize if it sounds stupid:

Does somebody, who applies for naturalization after 5 years of being a LPR--assuming he or she has not broken the law in any way.--have a legal right to become a naturalized citizen?

I don't think "legal right" is the correct term.

In immigration matters, someone applying for an immigration benefit always carries the burden of proving eligibility for the benefit. The standard of proof is "via a preponderance of the evidence", similar to filing a lawsuit in a civil court. It's not "beyond a reasonable doubt" like it would be in a criminal trial.

If someone submits an application for naturalization then it is the duty of the USCIS to deny the application unless and until evidence is provided showing eligibility.

In particular, you have the burden of showing your entry into the US was legal. If that was based on a marriage-based visa, you have the burden of showing that the visa wasn't obtained fraudulently; i.e. that the marriage was entered in good faith. But the record already contains the judgement of the officer(s) who granted you the visa and/or green card, so unless something new has come to light that would cause the original decision to be in doubt, it's not likely you'd need to provide more evidence in order to meet that "preponderance of the evidence" standard.

There are a bunch of grounds under which an application for naturalization could be denied, not limited to just violations of the law or bad faith marriage. For example, someone who was unable to learn enough English or Civics to pass the test would be denied (there are exceptions for certain classes of people based on age, disability, and length of residence). Someone who had been a member of the Communist Party of the United States would be inelgible under INA 313, even though such membership is probably protected under the first amendment (I smell an interesting lawsuit if this is ever seriously challenged).

To reinforce much of what's already been said, a bit of the legal theory background: Non-immigrant status is ordinarily for a temporary visit. So that status ordinarily terminates completely when your temporary visit is over on the day you leave. You can't bring it back once terminated, but instead you can, if eligible, apply to enter once again for a brand new temporary visit.

Adjustment of status is a request to change your non-immigrant status to lawful permanent resident status. In order to do this, you've got to have status from which to adjust.

If you leave while adjustment of status was pending, you ordinarily have terminated your non-immigrant status. Since you have no status from which to adjust, you therefore have abandoned your attempt to adjust status.

There is a way around this, but it involves getting an advance parole document before you leave. After you leave is too late, because your status has already terminated.

You are now in a situation just like any other married couple where the alien spouse has no paperwork to allow entry. You've got to file a petition and start the visa process.

Sorry to dredge up a sort-of-old thread, but I found this information as I was looking for something else. On the state department's fee schedule for passports, here's something that probably applies exactly to this case.

http://www.travel.state.gov/passport/get/fees/fees_837.html

File Search (Required when applicant is unable to present evidence of citizenship)

$60.00

In addition to the passport application, submit a written request for File Search to verify a previous U.S. Passport or Consular Report of Birth Abroad.

Applicants who are overseas and whose passport was lost or stolen are exempt from paying the File Search Fee. For more information, see 22 CFR 22.1, Item No. 6.

So it appears the situation is common enough that they have a standardized fee for it, and a written process. Probably just include the fee, and write a letter describing the situation and giving as much detail as you can about the previous passport. Talk to the people at your nearest passport acceptance facility for details.

Yes, if anything would make the baby a US Citizen, it would be INA 301(g), but that law requires that the US Citizen parent have lived in the US for at least five years prior to the baby's birth. Therefore, the baby is not a US Citizen.

In the original post, you ask "what course of action should I take?". The answer would depend on what you want to happen.

I'll guess the three of you are living together as a family, and you want to enter the US to live together as a family. If that is the case, then your US Citizen wife should file an I-130 for her child, which should lead to an immigrant visa for the child. When the child enters on the immigrant visa, the child will automatically gain US Citizenship on that day, assuming the child is in the custody of the US Citizen mother and the mother starts residing in the US. Search for "Child Citizenship Act" for details. After the child is in the US, you can get a certificate of citizenship and a US Passport for the child.

For your own visa case, the child has little effect, except that it may provide some evidence of the bona fide nature of your relationship to the mother, and it may affect the household size for the purposes of the affidavit of support.

Of course, you should update the officials the next time you see them (visa interview?) to let them know about the child.

If they issue a visa for you, the visa will probably have a validity period of 6 months. In other words, you must enter the US within six months after your visa is issued, or else your visa will expire. I don't know if they'll be able to issue a visa for the child in time for you to travel together, but it is probably best to start on the child's visa paperwork as soon as possible.

Thanks for the ideas. Some of those might just work.

Regarding the 90 day thing, we just have to be married in 90 days, not file for AOS, right? After the wedding we'll go on a honeymoon (1 week), wait for the certified marriage certificate (2 weeks?), and so may not file for AOS for a month. I thought we just had to be married within the 90 days, not necessarily file for AOS by that time.

There is an incentive obviously to get the AOS filed to get AP and EAD sooner, but is there a 90 day deadline?

First, I hope the honeymoon doesn't involve crossing international borders.

After the 90 days expires, she will be out of status. If you file for AOS a few weeks later, based on a marriage that happened before the 90 day timeline, the AOS will not have any trouble being approved (at least no trouble due to being past 90 days -- I'm assuming there will be no other unrelated problems regarding the AOS).

The problem is that, after the 90 days expires, and before you have a NOA1 saying you've applied for AOS, she will be out of status. If she comes into contact with immigration authorities during that window of time, she could have some difficulty. I'd guess it's unlikely she'll run into immigration authorities, but it's prudent to file AOS as soon as practical, and to be careful to avoid behavior that might bring her into contact with ICE officials during the out of status time.

For my interview, I had to read 'Where is the White House?', and write down the 'The White House is in Washington D.C.' - you won't have a problem

Wait wait wait....They made someone from the U.K. take an English test?

R O F L

My boss was born a citizen of South Africa, and is a native speaker of English. He went through naturalization in the US recently, and he was administered the English test. The person giving him the English test was an Asian person who was quite obviously not a native speaker of English, and who spoke with a fairly thick accent. HE should have been giving the test to HER.

It doesn't matter. They've got their policies. They stick to them.

Note the N-400 instructions ask for your nationality. And if you read the instructions, part 1, paragraph E 2, it says that if you are a citizen or national of more than one country, you are supposed to write the name of the country that issued your most recent passport on the N-400.

http://www.uscis.gov/files/form/N-400ins.pdf

I'm not completely sure, but I think the reason for that is because they need to gather certain statistics, and they just wanted an unambiguous way of collecting those statistics for dual nationals.

Did you have the Danish passport when you filled out the N-400? Or was it issued after you filed the N-400? If it was issued afterward, then the N-400 was correct on the date you filled it out, but you should probably bring both passports.

One other suggestion: If she's accepted a job recently, she would have been required to provide proof of citizenship to her employer for her I-9 form, and her employer was probably required to keep a copy of that proof. So if this is the case, she might be able to get a copy of her passport or birth certificate with stamp from her employer's records. That may not be perfect, but it may be helpful in getting the department of state to re-issue a passport.

But the laws requiring I-9 forms are fairly recent, and if she's been retired, or simply not changed jobs in the past few decades, this may not be helpful.

Maybe things like voter registration cards ?? You have to be a citizen to vote.

That most certainly WON'T work. While the law forbids non-citizens from registering to vote, most places don't verify citizenship too well. I know that I've been registered in five different jurisdictions, and not once was I asked to demonstrate proof of citizenship in order to register. All I did was state that I was a citizen. They took my word for it and believed me. Likewise my recently naturalized spouse who speaks English with a strong accent was able to register after naturalization without providing any kind of proof of citizenship.

The problem is that, if a non-citizen registers to vote in a federal election, that is grounds for deportation and a permanent bar to ever being admitted into the US.

So showing you're registered to vote, without ALSO showing you are a US Citizen, may just be taken as a demonstration that you have violated the law, are deportable, and may never return to the US.

There have been a few aliens here on VJ who registered to vote before they became citizens, without realizing the terrible consequences it has for immigration status. It's a mess. Search the US Citizenship forum for keywords like "vote". I wouldn't mention anything about voter registration until AFTER the citizenship issue is proven.

I'm not sure what to suggest other than the obvious. See if the department of state can dig up any records from when they stamped that birth certificate, or when they issued the previous passport that was later lost. See if social security has a record of citizenship status that can be used. If there's any proof of the father's citizenship (birth records, social security records, passport?), and if the father is named on the birth certificate, that may be enough to establish citizenship. A good immigration attorney may be able to help, though I'd suspect there are some attorneys who would be worse than useless for this kind of unusual case.

My co-worker is from the UK, his wife is a US citizen, he has been here in the US and married to her 3 years but has been out of the country attending scientific conferences, etc, a total of 3 months. He was told he had to wait an additional 3 months to apply for citizenship by our local USCIS immigration office when he did an infopass. Perhaps it is up to each office or officer but they do ask the question right on the I-400 application.

What you are saying is that someone can be outside the country for 17/36 months and still apply for citizenship?

Also, it is not the 3 years you have been married but the 3 years since you arrived in the US, ie, the date on your green card for those IR-1 or CR-1 filers.

Correction, you can file 3 years minus 90 days PLUS the number of days you have been out of the country since you received your green card!!!

Not true. Time spent outside the US only starts to impact your eligibility date if your total days outside the country add up to 18 months or more if applying under the 3 years based on marriage, 30 months or more if applying based on five years residency, or if you spent a year or more outside the US at one time.

Your co-worker was misinformed by the immigration officer. It happens. For the authoritative answer, see INA 316, 8 CFR 316, INA 319(a) and 8 CFR 319.1 (for the 90 day shortcut, see INA 334(a) and 8 CFR 334.2(b)).

If you want to see it in more plain English, see the M-476.

For perhaps the most straightforward explanation (but a bit simplified), see Part 2 of the N-400, boxes A and B.

jsnearline is right. Time spent outside the US doesn't affect naturalization eligibility unless it either breaks continuous residence, or totals more than half of the required continuous residence period.

Also, it is not the 3 years you have been married but the 3 years since you arrived in the US, ie, the date on your green card for those IR-1 or CR-1 filers.

There is a "three pronged" test for the three year filing under 319.1. It's explained in box 2B of part 2 of the N-400. The three prongs are

* Three years continuous residence in the US as a LPR (INA 334 gives a 90 day shortcut on this point ONLY)

* Three years married to and living in marital union with one US Citizen spouse

* The spouse must have been a US Citizen for three years.

All three of these conditions must be met in order to check box 2B. The order in which the three conditions will be met varies from one case to the next, so different people will have different conditions as their limiting factor that determines when they can file. Most people around here will probably have the "three years continuous residence with 90 day shortcut allowed" as the limiting factor, but people who only started to live together on the day they became permanent residents (due to entry as a CR-1), might have the second prong be the limiting factor, since no 90 day shortcut is allowed there. It's theoretically possible to have the third prong be the limiting factor, if you married someone who completed naturalization shortly after you were married.

Just to reinforce what's already been said, a legally married taxpayer cannot file as single, regardless of where the spouse lives.

For case law, see

http://www.altlaw.org/v1/cases/541600

There were some other issues, but this case involves a couple who had been married, but started living separately, and had some legal arrangement that might have even been considered a legal separation. The IRS said that, because they were legally married, they had to file as married and could not choose to file as single. The court upheld that decision.

When a taxpayer signs a return saying he's a single person, he's swearing to the US Government under penalty of perjury that he is not married. That statement may make it difficult to try and convince a different branch of the US Government that this allegedly single person is in a bona fide marriage for the purpose of obtaining a visa.

You've got an interesting situation. If you spend time living apart, you may have some problems with that "and living with" phrase. Note that the law in INA 319(a) merely says "living in valid marital union with". Much of the USCIS paperwork uses the phrase "married to and living with". There's a subtle distinction between these two phrases.

You may want to read the USCIS interpretations, part 319.1

http://www.uscis.gov/ilink/docView/SLB/HTM...tml#0-0-0-22701

(2) Marital union for purposes of section 319(a) . The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse. 13 /

A two-week separation during the requisite period has been held not to affect eligibility when the separation was ordered by a court as a cooling-off period following the husband's arrest for assaulting the wife. 14 / A similar brief cooling-off period not court ordered, but which could not reasonably be regarded as adversely affecting the objective of the requirement as interpreted in Kostas , 13 / also does not affect eligibility.

Another petition, 14a / involving parties who had been reconciled after a few brief separations, was granted even though a subsequent separation of two-and-one-half months immediately prior to the petition-filing prompted the petitioner to file a divorce complaint, which remained pending at the time the petition was finally heard. In granting the petition, the court noted that reconciliations had invariably followed the earlier separations; that the divorce proceeding had remained inactive; that two-and-one-half months out of a five-and-one-half-year marriage was a relatively short period of separation; and that, during such period, the citizen husband continued to support the petitioner, and both claimed not to have intended a permanent separation. The court stated that these facts resembled those in the Omar case, 14b / the implication being that, as in Omar, the separation of the parties had been a temporary cooling-off period, rather than complete and permanent. While the Service has recognized and will continue to apply the rationale of Omar, the decision in Olan 14c / in not to be regarded as a norm for determining what facts will bring a case within the scope of the Omar ruling. Moreover, since the Olan case was decided upon the Omar principle early in the decision, the court's subsequent gratuitous interpretation of the phrase "in marital union," which equated such phrase with the mere existence of the marital status, is regarded as dicta and shall not be followed by the Service.

It is the further position of the Service that, where a petitioner and spouse do not live apart by choice, or because of a legal separation or marital difficulties, but solely as a result of circumstances beyond their control, such as service in the armed forces of the United States or essential business or occupational demands, such separation - ­even when prolonged - ­does not preclude naturalization under this section.

It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period. 15 /

That next-to-last paragraph probably should give you hope.

I do know that there was at least one report here on VJ from a couple who went through the process after entry on a CR-1 visa, and filed 90 days prior to accumulating 3 years with a green card. They were denied, because the adjudicator said that, at the time they filed, they hadn't been living together for the full three years. Before entry to the US on the CR-1 visa, they had been married, but living in separate countries. Perhaps they could have argued that their separate living arrangement constituted "living in valid marital union with", and was "solely as a result of circumstances beyond their control", but it was easier to re-file than to try and appeal the decision.

I suspect your situation more clearly falls within the bounds of that next-to-last paragraph, but I really don't know.

I do believe that, as long as you tell the truth always, the worst that will happen if you file soon will be wasted time and money. Even if they deny the naturalization, you'll still be eligible to file after you've accumulated 5 years (or after you've accumulated 3 years unambiguously married and living together, but that'll probably be later than your five year eligibility).

Hi all -

I was wondering if someone could provide clarification and insight for me. I recently heard through a source who has said that starting March 2010, USCIS will make the I-751 waivers more restrictive (ie, they will be getting rid of the divorce/extreme cruelty waiver). Is this true? I have done much research on this, and all I've managed to come up with is that the I-751 waiver laws seem to be LESS RESTRICTIVE and are more pro-immigrant.

I also asked an immigration attorney and he said that he hasn't heard anything of that sort. Any ideas anyone?

The USCIS can't get rid of the divorce/extreme cruelty waiver. It's not their call. Congress wrote that provision into the law (INA 216©(4)), and only Congress can change it. Until Congress does change it, the USCIS is bound to follow the law as written.

In order for Congress to change it, the change would have to make it through various committees, pass both the full Senate and full House of Representatives, and then be signed into law by the President. Or the President could veto it and the veto could be overridden by a supermajority of both houses of Congress (but I don't think it would be easy for Congress to override a veto).

This won't happen quickly, if at all.

Although Congress sometimes does things that surprise me, I seriously doubt they would change this little provision of immigration law without tackling some more broad sweeping immigration reform changes at the same time.

In other words, we'll hear plenty about such a change before it happens, if it ever does happen.