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Naturalization Based on Marriage to a U.S. Citizen

Naturalization is the process by which U.S. citizenship is granted to a lawful permanent resident (“LPR”) after meeting certain requirements established by Congress in the Immigration and Nationality Act (“INA”). The most common path to U.S. citizenship through naturalization is being an LPR for at least five years. However, there is a special provision in the INA that allows LPRs to apply for naturalization, based on their marriage to a U.S. citizen, just three years after becoming an LPR.

Eligibility Requirements

To be eligible for naturalization based on marriage to a U.S. citizen, just three years after becoming an LPR, you must:

• Be at least 18-years-old when you submit Form N-400, Application for Naturalization;

• Be a lawfully admitted permanent resident of the United States for at least three years immediately before the date you file Form N-400;

• Have been living in marital union with your U.S. citizen spouse during the three years immediately before the date you file your application until you take the Oath of Allegiance;

• Have lived for at least three months in a state or USCIS district having jurisdiction over your place of residence;

• Have continuous residence in the United States as a LPR for at least three years immediately before the date you file your application;

• Reside continuously within the United States from the date you filed your application until the date you naturalize;

• Be physically present in the United States for at least 18 months out of the three years immediately before the date you file your application;

• Be able to read, write, and speak English and have knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States (also known as civics); and

• Be a person of good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States for at least three years immediately before the date you file Form N-400 and until you take the Oath of Allegiance.

Marital Union Requirement

As mentioned above, if you are applying for naturalization based on marriage to a U.S. citizen, there is a marital union requirement. This means all naturalization applicants filing based on marriage to a U.S. citizen must continue to be the spouse of a U.S. citizen from the time of filing the naturalization application until the applicant takes the Oath of Allegiance. U.S. Citizenship & Immigration Services (“USCIS”) considers an applicant to “live in marital union” with his or her U.S. citizen spouse if the applicant and the U.S. citizen actually reside together.

There are three scenarios that disrupt the marital union, including:

  1. Death of U.S. Citizen Spouse: An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen dies any time prior to the applicant taking the Oath of Allegiance. However, if the applicant is the surviving spouse of a U.S. citizen who died during a period of honorable service in an active-duty status in the U.S. armed forces, the applicant may be eligible for naturalization based on his or her marriage under a special provision.
  2. Divorce of Annulment: A divorce or annulment breaks the marital relationship. The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by a divorce or annulment. Accordingly, such an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed.
  3. Separation (Legal/Informal): A legal separation is a formal process by which the rights of a married couple are altered by a judicial decree but without eliminating the marital relationship. An applicant who is legally separated from his or her spouse during the time period in which he or she must be living in marital union is ineligible to naturalize as the spouse of a U.S. citizen.

Similarly, in many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. An applicant who is no longer actually residing with his or her U.S. citizen spouse following an informal separation is not living in marital union with the U.S. citizen spouse and is ineligible to naturalize.

Citizenship-based on Marriage to a U.S. Citizen is NOT Mandatory

In the event of a divorce, or any of the above scenarios, the LPR would not be eligible to naturalize, based on marriage to a U.S. citizen after three years. Instead, the LPR will need to wait at least two more years, until he or she is eligible apply for naturalization as a five-year LPR. Please note, an LPR is not required to apply for naturalization, after three years, just because he or she is married to a U.S. citizen. In fact, it is often easier to apply for naturalization after five-years as an LPR because it will not be necessary to submit evidence of your marital union. It is typically best practice to enclose an affidavit and proof of continued bona fide marriage (i.e. continued joint residency and comingled financial resources) with a naturalization application based on marriage.

Conclusion

Deciding to become a U.S. citizen is one of the most important decision an immigrant can make and depending on your situation there can be different way to approach obtaining citizenship. If you are a lawful permanent resident wishing to take those next steps toward becoming a U.S. citizen but aren’t sure what the best path forward is, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!