Applying for Naturalization while your I-751 Petition to Remove Conditions on Residence is still pending
Due to extended delays with the processing of I-751 petitions to remove conditions on residence, foreign national petitioners who are spouses of U.S. citizens sometimes find themselves in the position where they are actually eligible to apply for Naturalization before their I-1751 petition is granted and their conditional status is removed.
Generally, permanent residents are eligible to apply for naturalization after they have been permanent residents for five years, as shown by the “Resident Since …” date on their Green Card. This is the most common way that permanent residents apply to become naturalized U.S. citizens.
However, a permanent resident who has been married to and living with his or her U.S. citizen spouse is eligible to apply for naturalization after he or she has been a permanent resident for only 3 years. In both cases, the current regulations allow applicants to file 3 months early, therefore allowing applicants to establish eligibility after being a permanent resident for 4 years and 9 months (if applying under the usual 5 year rule) or 2 years and 9 months (if applying under the expedited “married to a U.S. citizen” rule). Thus, if you have a pending joint I-751 petition and you have been (and currently are) married to a U.S. citizen for at least 2 years and 9 months, you may consider filing for Naturalization if you otherwise meet the eligibility requirements set forth HERE.
This little known benefit may be a result of confusion over the general USCIS rule which states that an application for naturalization may not be approved if there is a pending petition for the removal of conditions. However, if you drill down further into the regulations, you will learn that a pending I-751 is not an obstacle; but rather, this only means that in order to adjudicate and approve an application for naturalization, USCIS just has to adjudicate and approve the I-751 petition and remove the conditions on residence first. What happens in these cases is that USCIS will consolidate the I-751 and the N-400 applications and hold an interview on both applications at the same time, and simply adjudicate the I-751 first, then the N-400.
One further point of qualification that I think is important to emphasize here is that in order to be eligible for this benefit, of being able to file an N-400 Application for Naturalization (based upon the 3 year rule) while the I-751 is pending, is only available to petitioner/applicants who are still living with their U.S. citizen spouse, up through and including the date of the Interview on the petition/application. That said, it is possible (and I have successfully guided clients through this in the past), to get the N-400 approved where the spouses are living in a state of separation but have the present intention of keeping the marriage intact and can demonstrate a valid reason for living (or sleeping) in separate residences. There are a variety of reasons why people separate but stay married, but most of the time it is in response to an external factor related to work, caring for a relative, or other circumstances that are reasonably beyond the applicant’s control.
If you have questions about whether you are eligible to file an N-400 application for Naturalization while your I-751 Petition to Remove Conditions on Residence is pending, call U.S. Immigration Lawyer, Sean D. Hummel to schedule a consultation (954) 385-3111.
Special Note. The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented in this blog to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.
