Marriage to a U.S. citizen has its immigration perks, for sure. It can lead to eligibility for a green card, it can mean faster adjudication times, it can mean that certain rules are “waived,” and it can also mean that a person can apply for naturalization sooner than other permanent residents.
Most permanent residents have to wait five years before they can apply for naturalization. However, the spouse of a U.S. citizen who got their green card based on that marriage and who is still in a marital relationship with the spouse, can apply for naturalization three years after getting a green card (even a conditional green card). It’s definitely a nice benefit and we have many clients who take advantage of applying after three years.
We’ve had a couple of cases that tested this law though. Spoiler alert: neither one worked. I want to share these stories so you can avoid a denial.
Nancy* had been a permanent resident for just over three years. She came to talk with me because her oldest son was about to turn 21 and had no status in the US (we won’t get into those reasons here). She wanted to know what could be done for him. Sadly, Nancy’s husband – the US citizen who petitioned for her all those years ago – had recently passed away. To best protect her son, we needed Nancy to become a US citizen before he turned 21. I explained this to Nancy and told her that I wasn’t sure USCIS would approve her case because she wasn’t in a current marriage to a US citizen – though it was of course not her fault. We filed and got her scheduled for an interview before his 21st birthday. The officer was extremely sympathetic, but ultimately the case was denied. Nancy naturalized 18 months later and her son has DACA now, so things are okay.
Linda* applied for naturalization on her own, based on the three-year rule. However, while she was waiting for her interview, she and her spouse divorced. When her interview was scheduled, she contacted us to see what her options were. By this time, she had her green card for five years, but we knew the issue would be that when she filed she hadn’t been a resident for five years. Again, we had a great officer who listened to our arguments and said he would take them all back to his supervisor. The denial was not surprising, but we had been hopeful. As soon as we had the decision, we filed a new N-400 for Linda since she had just celebrated her fifth anniversary as a permanent resident. She’s a US citizen today.
If you’re thinking about applying for naturalization based on being a permanent resident for three years instead of five, it’s important to keep these stories in mind. You have to be in a marriage to the original US citizen in order to apply for naturalization both when you file and when you have your interview. I wish we had been able to succeed with the first filing for both of these women. Thankfully they both achieved their goals, but it took a bit longer than expected.
* Names are changed