Good Moral Character and Extramarital Affairs

A key requirement for U.S. citizenship is showing good moral character during the period covered by the residency requirement, typically five years. An extramarital affair within this period may raise questions about your moral character. However, it does not automatically disqualify you from citizenship. USCIS will assess whether the affair led to the breakdown of your marriage or whether your spouse was aware of and accepted the affair.

Previously, an extramarital affair was considered automatic evidence of bad moral character. This rule has since changed, and USCIS no longer automatically disqualifies applicants based on an affair. Instead, they will evaluate the circumstances, including whether the affair affected your marriage or if your spouse was aware of it.

Factors That Influence the USCIS Evaluation

USCIS is less likely to find an affair to be indicative of bad moral character if:

• You were not living with your spouse at the time of the affair.
• You had an open marriage with your spouse.
• Your spouse was aware of the affair and accepted it.

On the other hand, an affair that was conducted without your spouse’s knowledge while you were living together could lead to a finding of bad moral character. However, if your marriage survived the affair, and you continue living with your spouse, or if the affair occurred when you were already in the process of divorce for other reasons, USCIS may be less likely to hold the affair against you. If the divorce was due to reasons unrelated to the affair or misconduct on your part, USCIS is unlikely to consider it negatively.

Discovering an Extramarital Affair

Although Form N-400 does not ask about extramarital affairs, USCIS may discover one through the process of reviewing your application, particularly if you list children born from an affair. Here are a few ways an affair might be revealed:

• If you list children born from an extramarital relationship and provide their details (birth date, location, etc.), USCIS may notice unusual patterns, such as children born less than nine months apart or with different last names from you or your spouse.
• Divorce decrees that do not account for children born before the divorce or explicitly state that a certain child is not the child of the couple may raise questions, prompting USCIS to investigate further.
• Child support orders: If you were ordered to pay child support for a child born to someone other than your spouse, this could indicate the presence of an affair.

Divorce for Unrelated Reasons

If your marriage ended for reasons unrelated to an affair or other misconduct, it will not negatively affect your eligibility for citizenship. This is true even if you obtained a green card based on your marriage. However, if the marriage ended in divorce, you will not be able to take advantage of the three-year residency requirement for citizenship, which is available only if you are still married to and living with your U.S. citizen spouse. You will need to wait the standard five years before applying for citizenship.

In cases where the foreign national is divorced, USCIS may want to ensure that the marriage was entered into in good faith and not as part of an immigration fraud scheme. If there are doubts about the validity of the marriage, you may need to provide additional documents to demonstrate its legitimacy, such as:

• Mortgages or bank accounts held jointly with the spouse.
• Birth certificates of any children from the marriage.
• Evidence of any efforts made to resolve marital issues, like attending couples therapy.

Conditional Residents and Divorce

Foreign nationals who are conditional residents (i.e., those who obtained permanent residency based on marriage and have been married for less than two years) may face additional challenges if they divorce. They will need to request a waiver of the requirement to file Form I-751 jointly with their U.S. spouse. To do so, they must provide the divorce decree or settlement, which may lead to further investigation by USCIS into whether the marriage was entered into in good faith.

Given the complexity of such cases, it may be beneficial to seek the assistance of an experienced immigration attorney to navigate the process.

By understanding the impact of an extramarital affair on your U.S. citizenship application, you can take appropriate steps to address any concerns USCIS may have, especially if your situation involves an affair or divorce.