A green card applicant married to a U.S. citizen and filing a separate income tax return must file as ‘married filing separate.’ Immigration authorities will deny a citizenship application to those filing as unmarried or ‘head of household’
Q: MY WIFE is a U.S. citizen. She sponsored me for my green card. We both work and live at the same address but we never filed a joint tax return. Can I nevertheless naturalize after three years permanent residence as the spouse of a U.S. citizen?
Gary, Jamaica, NY
A: If you and your wife filed separate tax returns as “married filing separate,” your taxes won’t be an issue. However, if you filed as unmarried, or you filed as “head of household,” the U.S. Citizenship and Immigration Services will deny your citizenship application.
A spouse of a U.S. citizen can naturalize after only three years permanent residence if he or she has been married to and living with, the same U.S. citizen spouse for three years after getting permanent residence. All naturalization applicants must comply with U.S. tax laws. Failure to comply with our tax law shows a lack of the “good moral character” needed to naturalize.
Sometimes a couple who is married and living together, can properly file separate returns. In a small number of cases, a couple can save money that way. But they must tell the truth about whether they are married and living together. “Head of household” is a category for a married couple living apart.
If you have not been filing proper returns, if you file correct returns before your interview, USCIS will likely ignore your prior filing.
Q: I am a U.S. citizen. I petitioned for my sister in April 2001. The USCIS denied my sister’s green card application because she wasn’t in the U.S. on Dec. 21, 2000. She used to travel abroad often and happened to be abroad on that date. What happens next?
Name Withheld, Brooklyn
A: Your sister may apply again for her green card, but she must apply at a U.S. consul abroad. But if she has ever been here unlawfully more than 180 days, traveling abroad may subject her to the “unlawful presence” bar to permanent residence. If that’s the case, she could get stuck abroad for years. USCIS will waive that bar only if she has a U.S. citizen or permanent resident spouse or parent.
On Dec. 21, 2000, President Clinton signed a bill extending the law that allowed many out-of-status immigrants to interview here for permanent residence. To qualify under the extension of the “245i” law, a person must have had started a family or employment case by April 30, 2001. And, the person must have been in the U.S. on Dec. 21, 2000. Congress didn’t want people coming here after Clinton signed the bill just so they could benefit from the law. Some people who can’t meet the 245i qualifications can apply abroad for their green card. An immigration law expert can help your sister decide whether that makes sense for her.
Now that USCIS has denied her application, Immigration could try to deport your sister. Should that happen, she will likely qualify to stay here under President Obama’s prosecutorial discretion program. That’s assuming she has no criminal record and has never been ordered deported.
Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now! project.
