Using the spousal “shortcut” to naturalization: things to consider

Naturalization is the process by which a foreign national becomes a United States citizen. Any person lawfully admitted as a permanent resident, regardless of marital status, may apply for naturalization after residing continuously in the U.S. for five years. In the case of some lawful permanent residents married to U.S. citizens, the residency requirement is shortened a full two years, from five years to three years. The spousal “shortcut” to naturalization, however, may not be the best choice for everyone and may result in complications and present roadblocks that might make the path to naturalization longer or unnecessarily complicated.

Spousal ‘shortcut’ to naturalization

If a lawfully admitted permanent resident is the spouse of a U.S. citizen, he or she may be eligible for naturalization after living in the U.S. for three years instead of the usual five. To be eligible for naturalization, a spouse of a U.S. citizen must have been “living in a marital union” with his or her citizen-spouse for the three years immediately preceding the filing of the application. During the three-year period, the applicant-spouse must have been physically present in the U.S. for at least half of the time and resided continuously in the state or district in which the application for naturalization was filed. While these requirements sound straight-forward, that is not always the case.

Proving validly of the marriage

The burden is on the applicant to prove the validity of his or her marriage. Even if the applicant’s permanent residency status was based on marriage, additional proof may be requested in some cases. A copy of the marriage certificate is usually sufficient, but sometimes the original or supplemental evidence is requested. Proxy marriages, in which only one spouse was physically present, and common-law marriages are two situations in which secondary evidence may be required. Proof of the validity of a prior divorce may also be required.

If the marriage certificate was never executed or if obtaining the original marriage certificate or secondary evidence is impossible or time-consuming, the spousal “shortcut” may end up taking longer than the standard five-year wait.

Living ‘continuously’ in a ‘marital union’

Another stumbling block for applicants wishing to take advantage of the spousal “shortcut” is the requirement of living “continuously” in a “marital union.” Whereas divorce always results in ineligibility, separation short of divorce can go either way.

• Legal separations. Applying the rule that a legal or a judicial separation ends a marriage, even if the couple continues to live together, can be difficult because of uncertainty over what constitutes a legal separation. There exists case law indicating that the issuing state’s definition is controlling, but the U.S. Citizenship and Immigration Services (USCIS) Policy Manual defines a legal separation as “a formal process by which the rights of a married couple are altered by a judicial decree but without eliminating the marital relationship.”
• Informal separations. Informal separations are generally seen as evidence suggestive of marital instability and grounds for greater scrutiny. The Policy Manual says an informal separation in which the spouses are no longer living together is not a “marital union,” but other factors may justify the same conclusion.
• Involuntary separations. Separations caused by circumstances beyond the control of the parties may be excused in some situations, provided there is no evidence of marital discord. The circumstances to which this exception applies are extremely limited – separations because of military service, lengthy hospitalization or natural disasters are of the type contemplated.

These are just a few of the things to consider before filing an application for naturalization. An immigration attorney can provide further guidance.