Couple Living Separately (due to job/school) - Can we apply after 3 years?

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coyne203

Registered Users (C)
Hi

My spouse & I live separately - I got admission to go back to grad school full time. However my spouse (US Citizen) has not yet found a job and still lives in our old home.

we have a son and meet up on weekends etc. joint accounts / mortgage etc.

Is it ok to apply after 3 years? or is this considered 'living separately' ?

Thx
-Coyne
 
You NEVER lived together in the past 3 years? Or is that you are apart only since you recently started grad school, and you were living together during most of your marriage before grad school?
 
You cannot file after 3 years because you are not together anymore. You have to wait until 5 years to file. I posted a link to a case where an N400 applicant travelled out of the country extensively violating the green card continuous presence clause while awaiting the oath letter. The USCIS ended up denying him the citizenship even thoguh he tried to argue that he had already been approved before he travelled and violated the continuous presence. Their rational was that applicants have to abice by every rule until after the oath. For example if the applicant got convicted of domestic violence the day of the oath just before he takes the oath, he is no longer eligible. The same goes for being together as a couple, you have to be together until after the oath otherwise you have to wait 5 years.
 
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jayoa said:
You cannot file after 3 years because you are not together anymore.
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The OP never said he wasn't together with his wife anymore.
jayoa said:
You have to wait until 5 years to file. I posted a link to a case where an N400 applicant travelled out of the country extensively violating the green card continuous presence clause while awaiting the oath letter. The USCIS ended up denying him the citizenship even thoguh he tried to argue that he had already been approved before he travelled and violated the continuous presence.
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There's no such thing as continuous presence. It's physical presence and continuous residence.
Continuous residence and martial union are two separate things. You're incorrectly using continuous residence requirement to state that OP can't apply until after 5 years when continuous residence is not even the issue here.
 
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coyne203 said:
Hi

My spouse & I live separately - I got admission to go back to grad school full time. However my spouse (US Citizen) has not yet found a job and still lives in our old home.

we have a son and meet up on weekends etc. joint accounts / mortgage etc.

Is it ok to apply after 3 years? or is this considered 'living separately' ?

Thx
-Coyne
Click to expand...
In some circumstances, involuntary separation does not preclude you from meeting marital union requirement. I assume your permanent address is still your old address, unless you have changed your records (ex: DL, bank accounts, etc.) to a new address. If you have extensive proof of joint accounts and can show that the schooling/living situation is temporary and involuntary, then you should be able to convince USCIS that you otherwise are living in martial union.

8 CFR 319.1a()(B)(ii)(C)

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

http://law.justia.com/us/cfr/title08/8-1.0.1.3.70.0.1.1.html
 
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Well, there would have to be two different addresses on the N400 for husband and wife and that is a red flag in any case whether the applicant considers it living separately or not. And while I may have mixed up words, we all know what I am trying to say, quit nitpicking and focus on the core message.
 
jayoa said:
Well, there would have to be two different addresses on the N400 for husband and wife and that is a red flag in any case whether the applicant considers it living separately or not. And while I may have mixed up words, we all know what I am trying to say, quit nitpicking and focus on the core message.
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I'm not nitpicking..you're incorrectly using continuous residence in your argument. You're also incorrectly assuming that the schooling move would require the OP to change his permanent address. Again, continuous residence has nothing to do in the OP's case.
 
Well, we'll find out if there will be foam after you put the soap in water. At this point, neither of us knows the reaction of USCIS when they see two different addresses on a marriage-based N400 application. What further clarifications they may require or not. One thing is sure that it is a red flag and they will want to know the situation of the living arrangement; if it is a separation, or they simply cannot afford a single household due to schooling and job situation, etc. I will expect RFE in a a YL requesting for more details on this. Best thing I usually tell people with such tricky situations is to consult an attorney because they can best handle such technical issues that may be speculated on here.
 
jayoa said:
, neither of us knows the reaction of USCIS when they see two different addresses on a marriage-based N400 application. .
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There wouldn't be two addresses on the application as the OP isn't required to change his permanent address for a temporary schooling move. The fact the the OP has proof of joint accounts and has a chance of demonstrating that the separation was involuntary makes him eligible under 8 CFR 319.1(a)(B)(ii)(C). There's no speculation in the matter. The OP should be prepared to quote the exact regulation 8 CFR 319.1(a)(B)(ii)(C) and show extensive proof that the separation was involuntary, something of course an experienced lawyer can help with.

There was a very similar case a few months ago that was denied, but it's likely the OP didn't quote the regulation 8 CFR 319.1(a)(B)(ii)(C) when she submitted the application, nor showed sufficient proof the separation was involuntary.

http://forums.immigration.com/showthread.php?317041-Couple-Living-Separately-%28due-to-job-school%29-Can-we-apply-after-3-years
 
Forumer's

Thank you for the feedback. This definitely gives me a few things to consider. To address some of the questions raised:

- we lived together since our marriage until now when the school started (June 2010). I became eligible last week to apply for N-400.

Bobsmyth said:
There wouldn't be two addresses on the application as the OP isn't required to change his permanent address for a temporary schooling move.
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- well unfortunately I had to change my address (school is in a different state) - but only 3 hours away. I had to do this to be eligible for some school jobs (State school - requires residency)
The original idea was that my spouse will find a job and we both would move.. Unfortunately this has not happened yet..

As far as documents go, we will have quite a few to show we are together
- mortgage
- bank statement
- tax returns

Thanks again for your valuable feedback..
 
I certainly understand your plight because I had the same thing in mind but because I am unsure how this will play out with an N400 application (and would rather not complicate matters for myself) I really want to wait to get all this N400 process over with since USCIS usually wants to see one's state ID, at least they asked for mine in the yellow letter they sent me, so if I had changed my address for school's sake that would have been obvious on the new state ID I would have gotten from the state next door. In the meantime I am still able to claim residency in a different school in the neighboring state simply by using a UPS address with a rented mailbox as my address in that state, I can't really do just that with the other preferred school because I had already declared years ago that I am out of state so to change that requires much more documentation which I have to wait until after the N400 process if done.
 
coyne203 said:
Forumer's

Thank you for the feedback. This definitely gives me a few things to consider. To address some of the questions raised:

- we lived together since our marriage until now when the school started (June 2010). I became eligible last week to apply for N-400.



- well unfortunately I had to change my address (school is in a different state) - but only 3 hours away. I had to do this to be eligible for some school jobs (State school - requires residency)
The original idea was that my spouse will find a job and we both would move.. Unfortunately this has not happened yet..

As far as documents go, we will have quite a few to show we are together
- mortgage
- bank statement
- tax returns
Click to expand...

You can still get approved, but you'll have to make sure you have a thoroughly prepared case and be ready to explain your situation clearly (and bring a printout of that regulation which Bobsmyth mentioned, just in case).

Or if you don't have an urgent need to get citizenship, you could postpone your application for a few months, increasing the chance that your wife will get a job and join you in the new city before the interview.
 
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