Can I Apply for Naturalization While My Application for Removal of Residency Conditions, I-751, Is Still Pending
January 8th, 2023
If you are a Legal Permanent Resident living in the United States on a conditional basis, you will need eventually to apply to have those conditions removed, in order to maintain your residency. In most cases this must be done just prior to the expiration of your 2-year Green Card.
This is requirement is common for individuals who received their residency through a petition filed by their spouse. According to the immigration law (Section 216 of the INA—Immigration and Naturalization Act), if a person obtains residency through a marriage-based I-130 petition, and the marriage was less than 2 years old on the day that the person received their Legal Permanent Resident status, then their residency is “conditional.”
An I-751 petition must be filed to remove the conditional status of a marriage-based conditional residency, and if the married couple is together, this must be filed during the 90 days before the 2 year residency period ends. (The I-751 petition may be filed earlier in the case of a divorce, a death, abuse or other exceptional circumstances).
An N-400, Application for Naturalization or Citizenship, may be filed after 33 months of being a U.S. resident, if a person has been married to a U.S. Citizen and has maintained Legal Permanent Residency for those 33 months, so long as the marriage relationship remains valid throughout the citizenship application process.
In recent years, the United States Citizenship and Immigration Services (USCIS) has been slow to complete the processing of the I-751 applications. Because of this, a person married to a U.S. Citizen could have completed their 3 year period with residency status before their I-751 application has been approved. Fortunately, applicants can file for naturalization with an N-400 peition, even if their I-751 application to remove the conditional status of their residency is still pending without a decision.
If you are considering applying for naturalization while your I-751 petition is still pending, our immigration lawyers can counsel you and represent you so that your case is prepared appropriately. For a case consultation, contact the FitzGerald Law Company today at (617) 303-2600.
General Requirements to Apply for Naturalization While Your I-751 Application is Pending
Conditional permanent residents that have filed an I-751, which is still pending with USCIS, may file for U.S. Citizenship, after having resident status for only 33 months, in certain situations. Generally, there are a number of requirements an applicant must meet to be eligible to file an N-400 so quickly:
- The I-751 Petition filed jointly by both spouses must be pending;
- There must be evidence that the marriage was valid at its inception;
- There must be evidence that the marriage remains valid until the N-400 process is complete;
- The applicant must meet the physical presence requirement (generally at least ½ of the 33 months in the U.S.);
- The applicant must meet the residency requirement (must be living permanently in the U.S. for the 33 months); and
- The applicant must be living in a state, territory or federal district for 90 days before filing.
N-400 petitions generally take less time to process than an I-751. So, if an I-751 petition is still pending when an applicant’s naturalization interview is scheduled to take place, a USCIS officer will typically decide on both petitions during the N-400 interview. Thus, a conditional permanent resident will want to have all of the evidence available for the approval of their I-751 at the time of the Naturalization interview.
It is critical to ensure that all requirements are met for both petitions when an applicant’s naturalization interview occurs.
When You Can File Your I-751 and N-400 Applications
U.S. immigration law (Section 216 of the INA) requires that Legal Permanent Residents with “conditional status” file their I-751 application to remove the conditions on residency during the last 90 days before the end of the two-year residency period, unless an exemption applies which would require an earlier filing. These exemptions include the death of a spouse, a divorce, domestic abuse or another exceptional circumstance, which would present an extreme hardship for the resident.
In most cases an N-400 may be filed after a person has been a Legal Permanent Resident for 57 months, just prior to their 5 year. However there are a number of exceptions, and the most common of the exceptions is the rule for spouses of a U.S. Citizen. If a person has been a Legal Permanent Resident for 33 months (3 months before the 3 year anniversary), and for that same period of time they have been married to a U.S. Citizen, then they may file an N-400 early.
In most instances, your residency period begins on the date that your permanent resident status is granted. You can usually determine this date by looking at your “Green Card,” as the date should be listed there. Our immigration lawyers can help you prepare your applications for filing an N-400 early based upon marriage to a U.S. Citizens and ensure that USCIS’s requirements are met.
Will My Application for Naturalization Be Approved Before My Application for Removal of Residency Conditions Is Approved?
The delays USCIS has had in processing and adjudicating the applications to remove conditions have necessarily led to some administrative problems. The filing of an N-400 may cause USCIS to adjudicate the application to remove conditional status faster, because as policy they do not want to approve an application for naturalization if the removal of conditions has not been granted. The good news is that a USCIS officer will usually adjudicate your petition to remove conditions while reviewing your application for naturalization if the former is still pending. Our immigration lawyers can help you prepare for your naturalization interview if your conditional residency status has not yet been removed.
Our Immigration Lawyers Can Help You
If you have applied to remove your residency conditions and are unsure if you can apply for citizenship / naturalization, our U.S. Citizenship immigration lawyers can review your case during your consultation. Call the FitzGerald Law Company at (617) 303-2600 and schedule your consultation appointment today.