Generally, Lawful Permanent Residents (LPR) are eligible to apply for citizenship after 5-years of having their green card. Certain residency and physical presence requirements must be met in order to apply for naturalization.
Any lawful permanent resident who is a spouse of a US citizen – or who obtained LPR status by way of battery or extreme cruelty from a US citizen spouse – may be eligible for an accelerated timeline of 3-years of LPR status before they are eligible to apply for naturalization.
When applying under the 3-year expedited timeframe, an applicant must:
- Have been a lawful permanent resident for at least 3 years preceding the filing date
- Have been living in marital union with US citizen spouse (except for those who have been battered or subjected to extreme cruelty) and the spouse was a citizen for that entire time
- Have been physically present in the US for at least 1.5 years of the last 3 years
- Have resided in the state or district in which they are applying for at least 3 months
Applicants must also show that they have had and continue to have good moral character in the 3 years preceding the filing for their N-400. 8 CFR § 319.1(a)(7).
It is important to note that, if all eligibility requirements are satisfied, you can apply at any time. If you have a pending Form I-751, Petition to Remove Conditions on Residence, you can still apply as long as you meet all requirements. The N-400 cannot be adjudicated before your I-751. However, in our experience the I-751 will be adjudicated at the time of your scheduled N-400 interview.
What is “marital union”?
8 CFR § 319.1 defines martial union as when the applicant and their US citizen spouse reside together. In general, evidence supporting marital union should support that the couple shares a life together and outwardly presents themselves as a married couple.
Applicants will be ineligible for the 3-year naturalization period if the following circumstances occur, which result in a loss of marital union for naturalization purposes:
- Death of US citizen spouse
- Expatriation of the US citizen spouse
- Legal separation
- Note – informal separations may suggest the possibility of a break in marital union. Informal separations are to be considered on a case-by-case basis when determining if the marital union has dissolved.
8 CFR § 319.1(b)(2)
Involuntary separation, however, will not preclude an application from the 3-year naturalization period. When the applicant and their US citizen spouse live apart due to circumstances beyond their control - such as US military service, essential business travel, or other occupational demands. See 8 CFR § 319.1(b)(2)(ii)(C).
Are there any exceptions to the residential and physical presence requirements?
In the following circumstances, when the US citizen spouse or the naturalization applicant is employed abroad, the residential and physical presence requirements can be waived:
- Where the US citizen is employed by;
- the US government
- an American institution of research recognized by the Attorney General
- an American firm or corporation – or subsidiary thereof – engaged wholly or partly in the development of foreign trade and commerce of the US
- a public international organization in which the US participates by treaty or statute
- a religious denomination having a bona fide organization within the United States and the US citizen spouse is authorized to perform the ministerial or priestly functions or is engaged solely as a missionary by a religious denomination or by an interdenominational mission
- The US citizen spouse is regularly stationed abroad in such employment;
- The applicant is in the US at the time of naturalization, and;
- Declares in good faith an intention to take up residence in the US immediately upon termination of the spouse's foreign employment
- Where any person is employed by;
- a bona fide United States incorporated nonprofit organization which is principally engaged in conducting abroad through communications media the dissemination of information which significantly promotes United States interests abroad and which is recognized as such by the Attorney General
- That person has been so employed continuously for a period of not less than five years after a lawful admission for permanent residence;
- The applicant files the N-400 while so employed or within six months following the termination thereof;
- The applicant is in the United States at the time of naturalization, and;
- Declares in good faith an intention to take up residence in the US immediately upon termination of the foreign employment
Additionally, any person who is the surviving spouse, child, or parent of a US citizen who dies during a period of honorable service in an active duty status in the Armed Forces of the United States may waive the residential and physical presence requirement. In the case of a surviving spouse, the couple must have been living in marital union together at the time of the US citizen's death. For the purposes of interpreting this section, the terms "US citizen" and "citizen spouse" include a person granted posthumous citizenship under section 1440–1.
Note that when the foreign national spouse has never been in the US eligibility under this section is not established even if the alien spouse resided abroad in marital union with the citizen spouse during the three year period.
Contact the Law Offices of James D. Eiss today to learn more about applying for naturalization as the spouse of a US citizen or as an applicant who has been battered or subjected to extreme cruelty.