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June 30, 2008: Naturalization Issue: File After Three Years Or Five

Naturalization Issue: File After Three Years Or Five?

I got my permanent residency on my own, and then married a US Citizen about 1.25 years later. Unfortunately, the marriage only lasted one year; our divorce has been going on for another 2 years since then. Upon the three year anniversary of our marriage, if the divorce is still in process, can I file for naturalization? Of course, if I wait one more year from now, I will technically have passed the 5 year wait period. We have not been living together during the divorce process.
— Anonymous

The general rule is that a person must be a permanent resident for five years before qualifying to file for naturalization. An exception to the five year rule applies if a person is married to an American citizen, the parties have been married for three years and are “living in marital union”. In that instance, the wait to qualify to file is three years from the date of permanent residency.

In your case, it would seem clear that since you are separated from your wife and a divorce is pending, the three year rule would not apply. Even though the divorce is not yet final, courts have interpreted the institution of divorce proceedings to terminate the “marital union” requirement. As with many laws, there are exceptions, of course. If you want to have this matter researched, you should retain the services of a competent immigration lawyer to see whether an exception might apply to you. Alternatively, just wait five years from the date of your admission as a permanent resident, and then file for naturalization, assuming you are otherwise qualified.

Good luck!

Michael Shane and Evan Shane, Immigration lawyers

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