Often, an immigrant’s application for citizenship may be impacted by their family or spouse. The general rule is that lawful permanent residents can apply to become naturalized U.S. citizens after they have had their green cards for five years. However, there is an exception for permanent residents that are living in “marital union” as a spouse of a U.S citizen. As discussed below, they can potentially apply for U.S. citizenship a mere three years after being granted permanent resident status.
Each case regarding naturalization through marriage is unique to the individual and their situation. If you are uncertain about the conditions or requirements related to your marital status it is always best to consult a U.S attorney specialized in immigration law for legal advice.
What Is “Marital Union”?
A lawful permanent resident can apply to become a naturalized U.S. citizen if they have lived in “marital union” with their U.S. citizen spouse for at least three years immediately preceding the filing of their application for U.S. citizenship.
U.S. Citizenship and Immigration Services (USCIS) considers an applicant to “live in marital union” with his or her citizen spouse if the applicant and the citizen actually reside together. It is the applicant’s responsibility to prove that he or she is living with their U.S. citizen spouse. The most common way of establishing “marital union” with a spouse is by submitting documents that show a joint residence. Here are common types of joint documents that help establish proof of “marital union” existence:
- Joint tax returns
- Utility bills containing both spouses’ names
- Joint mortgage or rental agreement, along with recent payments
- Joint ownership of assets
- Mail addresses to both spouses at the common address
Many people mistakenly believe that one of the requirements to naturalize after only having your green card for three years is that you must have been granted permanent residency based on a petition from your U.S. citizen spouse. This is not the case. It does not matter if you received your green card based on a petition from a spouse, an employer, asylum, etc. It is only necessary to prove that you have been living in “marital union” as a spouse of a U.S citizen for the three-year period immediately before you file your application.
Exceptions To The Requirement Of “Marital Union”
There are also limited circumstances in which a person may be able to establish that they are living in “marital union” with their U.S. citizen spouse even though they are not actually living together.
This usually only occurs when there has been an “involuntary separation.” An “involuntary separation” in this case refers to the applicant and their U.S. citizen spouse living apart due to circumstances beyond their control. The most common examples are when the U.S. citizen spouse is serving in the U.S. Armed Forces, or if one of the spouses has essential business or occupational responsibilities that force them to live apart.
A legal separation or an informal separation for any other reason may not qualify as an exception to the “marital union” requirement.
What Is a Valid Marriage?
An applicant will only be able to establish they are living in “marital union” with a U.S. citizen if they can first establish that their marriage is valid for immigration purposes. A marriage will only be valid for immigration purposes if it is legally valid.
A marriage will generally be considered legally valid for immigration purposes if it was valid under the law of the place where the marriage occurred. This is commonly referred to as the “place of celebration” rule. However, the USCIS will not recognize the following as valid marriages even if they are considered valid in the place where the marriage occurred:
- Polygamous marriages
- Proxy marriages, unless the marriage has been consummated (a proxy marriage is one in which one party was not present during the marriage ceremony)
- Marriages that were entered into solely for the purpose of gaining immigration benefits
- Relationships that are not recognized as marriages, such as civil unions and domestic partnerships
Same-Sex Marriage Green Card Eligibility
The Supreme Court of the United States has previously said that it is unconstitutional for federal laws to deny the validity of same-sex marriages. Therefore, same-sex marriage can be valid for immigration purposes so long as it was and is valid under the laws of the place in which it occurred.
It is also important to note that a person with a same-sex spouse may still be considered to be living in “marital union” even if they are living in a place that does not recognize same-sex marriages. The key is that the marriage was valid where and when it took place.
Process for Naturalization Through Marriage
Naturalization form N-400 will be required for individuals seeking to be naturalized through marriage. Those who are eligible should complete the N-400 form and submit the joint documentation mentioned above, to file for naturalization through marriage.
After the required paperwork and payment is processed, applicants will be screened through a biometrics appointment and interview. Those applying for naturalization will also be required to take a citizenship test which will include reading, writing, speaking, and civic portions.
Can Divorce Affect Citizenship Application?
Yes, getting divorced before becoming a U.S. citizen will absolutely affect your application for U.S. citizenship. USCIS will deny an application for citizenship if the marriage is terminated at any time before the applicant takes the Oath of Allegiance. If this occurs, then the applicant will have to wait and reapply at least five years after they were granted permanent resident status.
An informal separation while the application is pending may not necessarily result in an automatic denial. However, this informal separation may cause USCIS to closely scrutinize the documents you submitted and they might be more skeptical that you were indeed living in “marital union” for the required period of time.
Divorce After Citizenship
It is permissible for a person to get divorced after they become a U.S. citizen. This will only affect their U.S. citizenship in one situation – if the Department of Homeland Security ultimately discovers that the underlying avenue through which they obtained their green card was not valid for immigration purposes. This most commonly happens when the Dept. of Homeland discovers that the marriage was bigamous, or that the marriage was only for immigration purposes.
This can lead to a person losing their U.S. citizenship. It is a process that takes place in federal court and is referred to as denaturalization. Following the denaturalization process, the now-former U.S. citizen is restored to their status as a permanent resident of the U.S. However, it is overwhelmingly likely that the Department of Homeland Security will attempt to deport the now-former U.S. citizen for their fraudulent conduct.
If a person obtained their green card through a fraudulent marriage, they should consult a knowledgeable immigration attorney about whether they are eligible for a waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act. While each case varies, there may still be hope in keeping families together in the face of fraud.
Escaping An Unhealthy Marriage
Applicants who were granted permanent resident status under the Violence Against Women’s Act (VAWA) are eligible to file applications for U.S. citizenship three years after obtaining their green card. They are not required to prove “marital union” because of the abuse they previously suffered.
Women and men who qualify under the VAWA act may work with a U.S attorney specialized in immigration law to understand their eligibility, without having to contact their abuser.
Are Widow(er)s Protected?
Widow(er)s are not automatically eligible to file applications for U.S. citizenship based on marriage to a U.S. citizen. They must first be granted permanent resident status, and then must wait the full five years before they may become naturalized U.S. citizens. While it is a complex process to obtain a green card in this scenario, a widow(er) who meets the specified requirements may file a widow(er) petition also referred to as Form I-360. Along with Form I-360 widow(er)s must provide:
- The death certificate of their spouse
- A copy of the marriage certificate
- Evidence proving that the spouse had American citizenship
A qualified immigration and naturalization attorney will be able to further assist in understanding your citizenship status as a widow or widower.
Next Steps
Naturalization through marriage can be complicated and tricky. Incomplete or missing paperwork can result in problems, which is why you need solid legal counsel.
Reeves Immigration Law Group has over 40 years of experience devoted exclusively to the practice of U.S. immigration and nationality law. Immigration can seem like an overwhelming and daunting process, but our team of driven immigration attorneys will support you every step of the way from applying for temporary visas to filing a defense against deportation.
If you or a loved one is in need of guidance, contact us or call us to receive expert consultation from our immigration and naturalization attorneys
