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Can I still apply for Citizenship within three years of obtaining my green card if I divorced my U.S. Citizen spouse?

By December 14, 2022Immigration
A lawyer and his clients going over divorce papers

Unlikely. A person is ineligible for applying for citizenship as the spouse of a United States citizen if before or even after the filing of the application, the marriage ceases due to death, divorce or if the citizen spouse has lost his U.S. citizen status. We discussed the different requirements for obtaining U.S. citizenship here. If a green card was obtained through marriage to a U.S. citizen spouse, the legal permanent resident spouse will be eligible to apply for citizenship, three years after obtaining the green card.

The applicant spouse must be and remain a U.S. citizen from the time of filing of the application until the time the applicant takes the Oath of Allegiance. If the U.S. spouse loses his citizenship or the marriage ceases during any time before taking the Oath of Allegiance, the applicant loses eligibility based on being a legal resident for three years. However, the applicant can still qualify for citizenship after being a legal permanent resident for five years.

Also note that if the green card was granted with the marriage existing for less than two years, the noncitizen will be granted a two-year conditional green card. This will require the noncitizen to process a renewal of his status through a process called removal of conditions.  This process will not bar the noncitizen from accruing the required three years for the green card but may need to file both the removal of conditions application and later the naturalization application once the three-year mark is reached. We discussed the process for applying for naturalization while applying for removal of conditions here.

What if we were married for ten years before I obtained the green card?

This will not matter. Time in marriage before obtaining the green card is not considered, only the time after marriage up until the Oath of Allegiance. The law specifically requires “being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse.” See Immigration and Nationality Act section 319(a).

A marriage is considered to have ceased if the marital union ends due to the following:

  • Divorce or Annulment – A person’s marital status may be terminated by a judicial divorce or by an annulment. A divorce or annulment breaks the marital relationship. The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by a divorce or annulment. Accordingly, such an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed.
  • A legal separation – A legal separation is a formal process by which the rights of a married couple are altered by a judicial order but without eliminating the marital relationship. 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.

Furthermore, 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. As a result, the noncitizen will be ineligible for naturalization in the event of a legal separation.

  • Informal separation – where the informal separation may suggest the possibility of a marital disunity which will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marriage. An officer evaluating the marriage will look at:
    • The length of separation.
    • Whether the noncitizen and his spouse continue to support each other and their children during the separation.
    • Whether the spouses intend to separate permanently.
    • Whether either spouse becomes involved in a relationship with another person during the separation.

Note that involuntary separation such as a separation due to military service or an essential business or occupations demand, even if prolonged will not be considered to have ceased the marital union.

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