Q: Can I submit my application prior to accumulating the requisite period of residence?
A: Yes. Applications can be filed during the 90 day window prior to accumulating the necessary years of residence.
Q: Under what circumstances can I apply for naturalization based on 3 years of resident status but where the underlying marital relationship to my citizen spouse is no longer?
A: If you obtained your resident status pursuant to an I-360 Self Petition, as the battered spouse of a U.S. citizen or lawful permanent resident or by way of an I-751 removal of conditional status, battered spouse basis, eligibility for naturalization depends on an applicant’s 3 years of lawful permanent resident status and without regard to the state of their marriage.
Q: If I obtained my green card by way of an employment based petition or visa lottery application but have been married to (and now living with) with my U.S. citizen spouse for 3 years, can I apply for naturalization with only 3 years of lawful permanent resident status?
A: Yes. An N-400 applicant’s eligibility to apply for naturalization after 3 years of lawful permanent residence and marriage to and shared residence with their U.S. citizen spouse does not depend having obtained resident status by way of that marriage.
Q: What if I was the subject of criminal charges during or even before the qualifying period?
A: Generally, criminal charges that are dismissed do not pose any eligibility problems, as long as the applicant discloses the fact that they were arrested (it will show up on the fingerprint report anyway, and even if the record gets expunged). Criminal charges that lead to a conviction will definitely affect eligibility, even convictions for driving under the influence and even some convictions taking place prior to the eligibility period. Given the complexity of the law in this area, as well as the potential deportation consequences, I would advise all applicants with criminal backgrounds to consult with experienced immigration counsel before submitting an Application for Naturalization. The same goes for prospective applicants who may be facing other non-criminal bases of ineligibility – such as accidentally voter registration, voting, or other acts – as immigration authorities generally lean toward denying applications where a close call is involved, and even placing applicants in removal proceedings if any legal basis is at play. Moreover, the fact that an applicant’s act may have taken place prior to the 3 year eligibility period does not mean it cannot be held against them and negatively impact the decision making process.
Q: What if I no longer reside with my U.S. citizen spouse but am still married and was living with them at time of the submission of the application?
A: Eligibility for naturalization may still be intact however much will depend on the specifics of the case and exactly when the break in the applicant’s shared residence with their U.S. citizen spouse took place.
Q: How will absences of longer than 180 days – but less than a year, affect my eligibility?
A: Applicants with such absences during the qualifying period will have the burden of demonstrating to the CIS adjudicating officer they did not abandon their residence during this period, and therefore the extended departure should not constitute a break in the qualifying residency period. Factors considered by the CIS in assessing the nature of the departure include: did the applicant take work overseas? Did the applicant maintain a place of residence, bank account, business affiliation, employment ties, etc. in the U.S. during their departure? What was the intention of the applicant at the time they departed?
With so much on the line and so many variables to play in the N-400 decisionmaking process, prospective applicants may find the counsel of an experience immigration lawyer to be not just helpful but necessary. In this regard, a call to Richard Hanus of the Law Offices of Richard Hanus not only will enhance your chances of success with the naturalization process but also guard you from taking a step that could negatively impact your immigration status.