# Living in "Marital Union"?



## libove (Feb 24, 2008)

My (Japanese citizen) wife has held a US Green Card for 20+ years, and we've been married for 14 years. Seven years ago we moved from the US to Spain as a result of me receiving a job offer in Spain (NOT related to trade, religion, military - any of the special categories which obviate the non-citizen spouse's requirement to reside in the US for naturalization purposes).

Some of you may recall that this approximately coincides with the global recession...
To maintain our right to reside in Europe (as neither of us has European citizenship), I stayed on in Spain, while she went back to the US after about two and a half years. (She had applied for and received an extended leave to return to the US, so her Green Card status was never threatened, but she clearly did not physically reside in the US during those two+ years).

So, she has now been back physically in the US for over three years, and we've been married for 14 years; our marriage is absolutely intact. Our financial and emotional/sentimental lives are fully integrated .. but we obviously have not been living *physically together* during the past few years.

She is now planning to apply for US naturalization. Because she was outside of the US for over two years, and her time back in the US has not yet reached five years, we're considering using the "married to a US citizen spouse" 3-year rule, so that she does not have to wait for five years to pass before applying purely on her own residence basis. This requires that the petitioner for US naturalization and the US citizen spouse have been in "living in marital union" for the most recent three years.
And there's the question - what, legally and administratively, has been decided as the definition of "living in marital union"?

We're trying to find case law or administrative ruling which would support her use of the 3-year-in-US, "marital union" to a US citizen spouse rule.

I found a couple of decades old (1960s, 1970s) cases where briefer periods of separations were NOT held against the petitioner for naturalization (and where the separations were in fact threats to the marital union, but which did not at the time result in formally breaking the marital union). But these were periods of months, not years. And they're decades old.

In one of those cases, the court's argument specifically said that they wouldn't want (neither as the court, nor as the INS [as it was then called] investigator) to try to judge whether "marital union" would have been broken by e.g. the US citizen spouse's year-long trip to Mount Everest, or to go painting in Tibet, etc. That would seem to support our theory that we've been "living in marital union" for the past three (fourteen!) years, despite my having not resided physically in the US during the past seven years. But I realize that it could be seen as a stretch, and before we submit the forms and pay the money and time costs, we want to try to find something to back up our interpretation.

(Before anyone asks, no, we're not hiding anything, there's no embarrassing or inexact facts; our claim to be stably married, fully integrated, supportive, tied together, etc, with the single exception of having made the difficult, long-term plan decision for me to remain living and working in Spain during these several years, is entirely truthful and provable).

Can someone point me to less-typical cases where a petitioner for US naturalization, relying on the 3-year US-spouse rule, where the US citizen spouse did NOT physically live in the US during those three years (and whose time outside of US was not because of one of the enumerated statuses such as military, trade delegation, etc), was supported in his/her petition for naturalization on this basis, by demonstrating any/all of the facts which do apply to my wife:
* long, stable marriage
* long US association (although broken by the 2.5 year Spain adventure)
?

many thanks,
Jay & Yoshiko
Barcelona/Kentucky


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## Bevdeforges (Nov 16, 2007)

I have no idea these days how to research the case law, but here in France (where you're required to maintain a domicile in common with your spouse), you would use evidence that you do, indeed, maintain a joint domicile. One of your "homes" could/should be in joint names (ownership or both names on the lease), and you would show proof that the "absent" partner returns periodically to the joint home - for visits, during their vacation time, etc. - and maintains some personal effects there on a permanent basis. (I.e. a set of clothes so you can travel light.)

It's what people who work on oil rigs or ocean vessels do. Maybe someone has some experience in that domain who could advise here.
Cheers,
Bev


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## libove (Feb 24, 2008)

Hi Bev. That's my thinking. It seems reasonable. Unfortunately, when dealing with immigrations, "thinking" and "reasonable" often don't cut it! :-}

Hoping someone has a similar experience with US immigrations, or references to case law.

many thanks all,
-Jay


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## Davis1 (Feb 20, 2009)

Citizenship & Naturalization 
Citizenship & Naturalization - Volume 12 | Policy Manual | USCIS

Continuous Residence - Chapter 3, Part D, Volume 12 | Policy Manual | USCIS


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## libove (Feb 24, 2008)

Hi Davis1. I'd already read the policy manual, other USCIS resources, several immigration-focused law firms' web pages, and a small number of court cases which I was able to find via Google mentioning the issue. None of them show a clear trend one way or the other in terms of USCIS administrative decisions, and the two court cases I found suggest that it should go the way I think about it, but are old and not exactly relevant and all such cases turn on the details. So I really do need to find someone who has encountered this, or a specific recent legal or administrative decision related.
thanks,


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## twostep (Apr 3, 2008)

Please consider this strictly a personal opinion. 

We had frequent long separations due to employment. Very close examination of proof of marriage seems to focus on those really applying at the earliest possible date after marriage. You have a 14-year relationship with established traditional ties from finance to who knows what. Your taxes have been properly filed. Spend an hour with a reputable attorney - it will be worth your peace of mind.


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## Davis1 (Feb 20, 2009)

The rules seem very straight fordward to me .. 
I think you are flogging a dead horse ..
but good luck ...


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## libove (Feb 24, 2008)

twostep said:


> Please consider this strictly a personal opinion.
> 
> We had frequent long separations due to employment. Very close examination of proof of marriage seems to focus on those really applying at the earliest possible date after marriage. You have a 14-year relationship with established traditional ties from finance to who knows what. Your taxes have been properly filed. Spend an hour with a reputable attorney - it will be worth your peace of mind.


Okay, opinion considered personal 
On the subject ... can someone recommend a reputable immigration attorney please?

thanks!


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## Davis1 (Feb 20, 2009)

AILA's Immigration Lawyer Search


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## libove (Feb 24, 2008)

Davis1 said:


> AILA's Immigration Lawyer Search


That's a search, but doesn't necessarily help determine how good/ reputable a lawyer is.
Any personal recommendations from originally-non-US-citizens who have recently used an immigration lawyer, especially for a non-typical naturalization case, please?

thanks.


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