Can I Apply for Naturalization While My Application for Removal of Residency Conditions is Still Pending
December 10th, 2022
If you are a Legal Permanent Resident living in the United States on a conditional basis (a 2 year Green card) you will need to apply to have those conditions removed with an I-751 petition to remove conditions from residency obtained through marriage, or an I-829 petition to remove conditions from residency obtained through investment (and for certain dependents). Generally there are long processing times for USCIS to adjudicate these petitions, as t can take well over 1 year for an I-751petion to be approved, and over 5 years for I-829 petitions (https://egov.uscis.gov/processing-times/).
Due to these long processing times, many Conditional Residents will qualify to apply for Naturalization before they are granted their “unconditional” residency (a 10 year Green Card). Because “conditional” residents have all the rights that “unconditional” residents have, individuals with an I-751 or an I-829 that have not yet been decided, are permitted to file an N-400, Application for Naturalization so long as they meet all of the qualification requirements.
If you are considering applying for naturalization while your I-751 or I-829 petition is still pending, our immigration lawyers can counsel you on your rights moving forward. For a case consultation, contact the FitzGerald Law Company today at (617) 303-2600.
Eligibility to file for Naturalization / Citizenship for Conditional Permanent Resident Status Based on Marriage to a U.S. Citizen
If you receive Legal Permanent Residency through a marriage to a U.S. Citizen before your 2nd anniversary, then you will be granted Conditional Permanent Resident Status for 2 years. Generally, you will have to file a petition, Form I-751, during the 90 days before the expiration of your residency to remove the “conditions” of your status and obtain a “10 Year” Green Card.
While in most cases a person must be a legal Permanent Resident for 5 years in order to apply for Naturalization, under Section 316 of the Immigration law, however, there is an exception for certain Residents, under Section 319. This exception allows a person to apply for citizenship if they have been a Resident and in a “bona-fide” marriage with a U.S. Citizen for 3 years, or if they have been a Resident for 3 years and they have been the victim of domestic violence by the spouse or stepparent through which they received their Residency. This exception, that allows an early application for citizenship status, requires evidence of the validity of the marriage or in the case of domestic violence, evidence of the marriage and the abuse, in addition to all of the other requirements.
General Requirements to Apply for Citizenship with an N-400 while your I-751 Petition is Pending
Some conditional permanent residents will be able to meet the requirements file an N-400, Application for Naturalization while their I-751 petition is still pending.
First, there must be a properly filed I-751 with sufficient supporting evidence to demonstrate that the applicant is qualified for its approval. Evidence of the validity of the marriage is critical and should include joint financial records, like a bank account with direct deposit from the employer of both spouses, documentation for joint insurance policies, such as health, car and property (life insurance is generally not strong evidence of a valid relationship), joint tax filings and state driver’s licenses or ID’s listing the marital property.
If the I-751 is based upon domestic violence, in addition to the evidence that there was a “bona fide” marital relationship, you must provide evidence to prove there was domestic violence. This evidence may include, police reports, restraining orders, court records and medical documentation.
In addition to the documents that must have been filed with the I-751, the N-400 requires evidence that the applicant:
- Has Legal Permanent Resident status for 2 years and 9 months (the N-400 can be filed 90 days before the 3rd year of residency)
- Is married to and residing with a U.S. Citizen for the last 3 years and to the present, unless the application is based upon domestic violence
- Spouse has been a U.S. citizen for last 3 years
- Had had physical presence in the U.S. for more than half of the last 3 years
- Resides in the USCIS jurisdiction that will process your N-400 for at least 3 months
- Is of good moral character for at least the last 3 years
- Has been abused, in the case of a domestic violence based claim
It is critical to ensure that all requirements are met for both the I-751 & N-400 petitions, and in the case of a petition based on a marriage to a U.S. Citizen, that the status of the qualifying marriage continues until the citizenship is granted.
When You Can File Your I-751 and N-400 Applications
U.S. immigration law allows permanent residents to file their application to remove the conditions of their Residency 90 days before the end of the two-year conditional period, or at an earlier date if there is a qualifying event, like an incident of domestic violence.
Similarly, in most cases, an N-400 can be filed 90 days before the applicable 5 year or 3 year period.
Your residency generally begins on the date USCIS granted your Legal Permanent Resident status or on the date that you entered the U.S. after the approval of your DS-260 at a U.S. Consulate. You may be able to determine when is the earliest date you can file an N-400 by identifying the date of permanent residency listed on your green card, the period of time you must wait (generally 3 years or 5 years), and then tracking it back 90 days. Our immigration lawyers can help you prepare your I-751 and your N-400 filings and ensure that the legal requirements for USCIS are met.
Will My Application for Naturalization be Approved Before My Application for Removal of Residency Conditions is Approved?
The delays in processing I-751 and I-829 petitions have expanded dramatically. It is common for an I-751 to take between 14 and 33 months to be completed and over 5 years for an I-829 to be finalized (https://egov.uscis.gov/processing-times/).
While you may file your N-400 before the petition to remove the conditions of your Residency has been decided, USCIS will generally issue a decision on your I-751 or I-829 before your N-400 as a matter of their general practice.
The law does not require that the I-751 be adjudicated before an N-400, since technically a “conditional” Resident has all the same rights as an “unconditional” Resident according to the regulations. (See 8 C.F.R. § 216.1 “the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible).”)
In the event that an N-400 was approved while an I-751 or I-829 were still pending, the effect would mean those applications no longer need to be processed, because once the applicant is granted U.S. Citizenship, they cannot be a resident by law.
It is a common practice, if an N-400 petition is filed while an I-751 is pending, for USCIS to schedule an interview for the applicant and to adjudicate both petitions at the same time, which means your N-400 may speed up the adjudication of your I-751, since the processing times for N-400’s are consistently shorter than I-751’s.
Our Immigration Lawyers Can Help You
If you have applied to remove the conditions of your residency and are interested in applying for naturalization, our immigration lawyers can assist you with your case. Call the FitzGerald Law Company at (617) 303-2600.