USCIS recently clarified that lawful permanent residents applying to naturalize on the basis of marriage to a US Citizen must not only demonstrate “living in marital union” with their spouse three years immediately prior to filing, but also that termination of the marriage at any time prior to the Oath of Allegiance renders an applicant ineligible under section INA 319(a). We have seen this second provision being strictly applied to deny naturalizations applications where the applicant divorces after passing the examination but prior to the oath ceremony. Practically speaking, this may not affect residents in states that administer the oath the same day as the interview, such as New Jersey. In general, however, most states regularly schedule the oath ceremony many months after the applicant has passed the examination. This gap can, in some cases, be quite long, especially if background checks are being conducted, an officer needs to look into something, or on occasion, neglects to finish reviewing the file. In the interim, an applicant’s marital situation may rapidly deteriorate and the couple may seek a quick dissolution. Unfortunately, if this occurs prior to the oath, the applicant has technically fallen outside the boundaries of INA 319, the section of the law that allows green card holders to apply after only three years marriage to a US Citizen (versus the normal requirement of five years permanent residence prior to becoming eligible). This is one reason why applicants are expected to review and complete a questionnaire on the day of the oath verifying that certain information has not changed, ie., address; arrests; trips outside the US; and in this case, marital status.
On the other hand, if the applicant remains legally married but lives separately from his/her estranged spouse after the test but before the oath, naturalization may still be viable. Technically, it appears the applicant remains eligible since the three years of living in marital union is only required until the time of filing. But practically speaking, the fact of separation may cause the officer to inquire deeper into the state of the marriage, especially if it takes places after filing but before the oath. In such circumstances, the officer is instructed under the Policy Manual to “consider whether the applicant met the marital union requirement at the time of filing,” a prerequisite under section 319.
Moreover, it is important to remember that the applicant bears the burden of showing that he/she is eligible for and warrants naturalization. Some people mistakenly believe that USCIS needs to prove that the couple is not together if it seeks to deny a petition based on three years marital union. This misapprehension can be costly. Applicants need to be aware that naturalization is a privilege and benefit, not an entitlement. As such, applicants should expect rigorous examination and be prepared to prove how they meet all the requirements for citizenship.