Timing of U.S. Citizenship Applications, Including New Policy
March 15, 2005

In most cases, prospective applicants for U.S. citizenship must live in the U.S. for 5 years as lawful permanent residents before they become eligible to submit their N-400 applications. For applicants who are married to U.S. citizens, eligibility commences after they have accumulated 3 years of lawful permanent residence, as long as they have resided with their U.S. citizen spouse for all 3years. (In actuality, N-400 applications can be filed within the 90 day period just prior to the accumulation of 5 or 3 years of residence).

Additionally, in most cases, eligibility for U.S. citizenship hinges on an applicant’s ability to satisfy other requirements, including:

  1. showing good moral character for the statutory period,
  2. demonstrating actual residence in the U.S. and without prolonged departures during the requisite period,
  3. ability to read, write and understand English,
  4. d) demonstrating knowledge of U.S. government and civics by answering (orally) 6 of 10 questions correctly.

In recent years, a gray area that has arisen in this area of immigration law concerns prospective applicants for U.S. citizenship who obtained conditional, 2 year resident status by way of marriage to a U.S. citizen, but whose I-751 petitions (to remove conditional status) are still pending. Will an application for U.S. citizenship be accepted and decided without delay even though the applicant’s request to remove their conditional status is still pending?

And now a definitive answer has revealed itself: Yes.

As background, foreign nationals who obtained resident status in the U.S. by way of a marriage to a U.S. citizen are granted resident status for only a 2 year, conditional basis – if at the time they were granted status, they were married to their U.S. citizen spouse for less than 2 years. On the other hand, those obtaining their initial resident status after they had been married for more than 2 years, are granted unconditional permanent resident status.

At the end of a conditional resident’s 2 year status, an I-751 joint petition to remove conditional status must be submitted, with the foreign national and their spouse both attesting to their continued life together, and including documentary evidence of the couple’s continued cohabitation. (Please note that a conditional resident whose marriage fails still has the option to proceed without the cooperation of their U.S. citizen spouse by way of an I-751 waiver filing. However, the present discussion mainly concerns those who continue to reside with their U.S. citizen spouses).

Conditional residents residing in the Chicago area, and across the Midwest, are required to submit their I-751 filings with Citizenship and Immigration Service’s Nebraska Service Center. Unfortunately however, processing times for I-751 filings at the Nebraska Service Center (as well as at the other 3 CIS Service Centers across the U.S.) have skyrocketed to more than 18 months. Thus, applicants who are awaiting the processing of their I-751 filings are usually mid way into their 4th year of residence in the U.S. before they receive a decision.

In the past, I would hesitate to advise clients to proceed with the filing of N-400 applications while their I-751 filings remained pending, even though no legal basis for such advice existed. My cautious guidance was rooted in the concept of letting the U.S. government process to completion one submission before proceeding with a request for a new immigration benefit. After all, I did not want to have 2 branches of CIS fighting over my client’s file, thus causing a delay in the processing of both immigration benefits.

In recent months, however, clients fed up with the I-751 processing delays who have nevertheless decided to file their N-400’s, found themselves with good fortune. We proceeded with the filing of N-400 applications for client’s who had accumulated the requisite period of residence with the U.S. citizen spouse, although Nebraska was not even close to getting to a decision on the I-751. And when appearing for their naturalization interview, the clients were greeted by an immigration officer ready to make a decision on both the I-751 filing and application for U.S. citizenship.

Indeed, as long as the applicant provides substantial and clear evidence that they continue to reside with the U.S. citizen spouse (in fact, I advise most such applicants to bring their U.S. citizen spouses with them to their naturalization interview), it appears CIS will not hesitate to approve the I-751 at the time of the N-400 interview. In other circumstances, where questions regarding the applicants’ continued cohabitation with their U.S. citizen spouse are at issue, CIS will generally refer the case for a separate I-751 interview to be conducted at a separate place and time.

The above experience is an account of CIS policy in Chicago, and the extent to which applicants in other cities can expect similar treatment is not entirely clear at this time.

Copyright © 2005-2008, By Law Offices of Richard Hanus, Chicago, Illinois