A.General Eligibility for Spouses Residing in the United States
The spouse of aU.S.citizen who resides in theUnited Statesmay be eligible for naturalization on the basis of his or her marriage.[1] The spouse must have continuously resided in theUnited Statesafter becoming a lawful permanent resident (LPR) for at least 3 years immediately preceding the date of filing the naturalization application and must have lived in marital union with his or her citizen spouse for at least those 3 years.
The spouse must establish that he or she meets the following criteria in order to qualify:
Age 18 or older at the time of filing.
LPR at the time of filing the naturalization application.
Continue to be the spouse of the U.S. citizen up until the time the applicant takes the Oath of Allegiance.
Living in marital union with the citizen spouse for at least 3 years preceding the time of filing the naturalization application (the citizen spouse must have been a U.S. citizen for those 3 years).
Continuous residence in the United States as an LPR for at least 3 years immediately preceding the date of filing the application and up to the time of naturalization.
Physically present in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the date of filing the application.
Living within the state or USCIS district with jurisdiction over the applicant’s place of residence for at least 3 months prior to the date of filing.
Demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage.
Demonstrate a knowledge and understanding of the fundamentals of the history and principles and form of government of the United States (civics).
Demonstrate good moral character for at least 3 years prior to filing the applicationuntil the time of naturalization.
Attachment to the principles of the U.S. Constitution and well-disposed to the good order and happiness of the United States during all relevant periods under the law.
The spouse of aU.S.citizen residing in theUnited Statesmay also naturalize under the general naturalization provisions for applicants who have been LPRs for at least 5 years.[2] In addition, in some instances the spouse of a member of the U.S. armed forces applying pursuant to INA 319(a) or INA 316(a) may be eligible for any naturalization proceeding abroad, to include interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.[3]
B.Living in Marital Union for Spouses Residing in the United States
The spouse of aU.S.citizen residing in theUnited Statesmust have been living in marital union with his or her citizen spouse for at least 3 years immediately preceding the time of filing the naturalization application. This provision requires that the spouse live in marital union with the citizen spouse during the entire period of 3 years before filing.[4]
However, the statute does not require living in marital union for the period between the date of filing the application and the date of naturalization (date applicant takes the Oath of Allegiance). The corresponding regulation conflicts with the statute in stating that the spouse must have been living in marital union with his or her citizen spouse for at least 3 years at the time of the examination on the application, and not at the time of filing.
USCIS follows the language of the statute in requiring living in marital union only up until the time of filing.[5] Accordingly, only the existence of a legally valid marriage is required from the date offiling the applicationuntil the time of the applicant’s naturalization.[6]
A person who was a spouse subjected tobatteryor extreme cruelty by their citizen spouse is exempt from the marital union requirement.[7]
C.3 Years of Continuous Residence
The spouse of a U.S. citizen residing in the United States must have continuously resided in the United States as an LPR for at least 3 years immediately preceding the date of the filing the application and up to the time of the Oath of Allegiance. Continuous residence involves the applicant maintaining a permanent dwelling place in the United States for the required period of time. The residence is the applicant’s actual dwelling place regardless of his or her intentions to claim it as his or her residence.[8]
D.18 Months of Physical Presence
The spouse must have been physically present in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the date of filing the application.[9] Physicalpresence refers to the number of days the applicant must physically be present in the United States during the statutory period up to the date of filing for naturalization.[10]
E.90-Day Early Filing Provision (INA 334)
The spouse of a U.S. citizen filing for naturalization on the basis of his or her marriage may file the naturalization application up to 90 days before the date he or she would first meet the required 3-year period of continuous residence.[11] Although an applicant may file early and may be interviewed during that period, the applicant is not eligible for naturalization until he or she has satisfied the required 3-year period of residence. All other requirements for naturalization must be met at the time of filing.
USCIS calculates the early filing period by counting back 90 days from the day before the applicant would have first satisfied the continuous residence requirement for naturalization. For example, if the day the applicant would satisfy the 3-year continuous residence requirement for the first timeison June 10, 2010, USCIS will begin to calculate the 90-day early filing period from June 9, 2010.
In cases where an applicant has filed early and the required 3-month period of residence in a state or service district falls within the required 3-year period of continuous residence, jurisdiction is based on the 3-month period immediately preceding the examination on the application (interview).[12]
F.Eligibility for Persons Subjected toBatteryor Extreme Cruelty
1.General Eligibility for Persons Subjected to Battery or Extreme Cruelty
On October 28, 2000, Congress expanded theprovision regardingnaturalizationbased onmarriage to a U.S. citizen for persons who reside in the United States. The amendments added thatany person who obtained LPR status as thespouse, former spouse,orintended spouse[13] ofaU.S. citizenwho subjected him or her to battery or extreme crueltymay naturalize under this provision.[14]
Specifically, the person must have obtained LPR status basedon:
An approved Petition forAmerasian, Widow(er), or Special Immigrant (Form I-360) as theself-petitioningspouse of an abusiveU.S. citizen;
An approved Petition forAmerasian, Widow(er), or Special Immigrant (Form I-360) as theself-petitioningspouse of an abusiveLPR,if the abusive spouse naturalizes after the petition has been approved;[15] or
Special rule cancellation ofremovalfor battered spouses and childrenin cases where the applicant was the spouse, or intended spouse of a U.S.citizen,who subjected him or her tobatteryor extreme cruelty.[16]
A person is also eligible for naturalization under the spousal naturalization provisions if he or she had the conditions on his or her residence removed based on:
An approvedbattery or extreme crueltywaiver of the joint filing requirement forPetition toRemoveConditionson Residence (Form I-751),foraconditionalpermanent resident, if the marriage was entered into in good faith and the spouse was subjected tobatteryor extreme cruelty by thepetitioningcitizen or LPR spouse.[17]
2.Exception to Marital Union and U.S. Citizenship Requirements for Spouses
A person subjected to battery or extreme cruelty by his or her U.S. citizen spouse is exempt from the following naturalization requirements:[18]
Married to the U.S. citizen spouse at the time of filing the naturalization application;
Living in marital union with the citizen spouse for at least 3 years at the time of filing the naturalization application; and
Applicant’s spouse has U.S. citizenship from the time of filing until the time the applicant takes the Oath of Allegiance.[19]
The spouse must meet all other eligibility requirements for naturalization.[20]
G.Application and Evidence
1.Application forNaturalization (Form N-400)
To apply for naturalization, the applicant must submit an Application for Naturalization (Form N-400) in accordance with the form instructions and with the required fee.[21] The applicant should check the appropriate eligibility option on the naturalization application to indicate that he or she is applying on the basis of marriage to a U.S. citizen.
2.Evidence of Spouse’s United States Citizenship
Under this provision, the burden is on the applicant to establish that he or she is married and living in marital union with aU.S. citizen.[22] A spouse of aU.S.citizen must submit with the application evidence to establish theU.S.citizenship of his or her spouse.[23]
Evidence ofU.S.citizenship may include:
Certificate of birth in the United States;
Department of State Consular Report of Birth Abroad (FS-240);
Certificate of Citizenship;
Certificate of Naturalization; and
Valid and unexpired United States Passport.
If an official civil record cannot be produced, secondary evidence may be accepted on a case-by-case basis. An officer has the right to request an original record if there is doubt as to the authenticity of the record.[24]
Footnotes
[^ 1]SeeINA 319(a). See8 CFR 319.1.
[^ 2]SeeINA 316(a). SeePart D, General Naturalization Requirements[12USCIS-PM D].
[^ 3]See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits[12USCIS-PM I.9].
[^ 4]There are limited circ*mstances where an applicant may be able to establish that he or she is living in marital union withthecitizen spouse even though the applicant does not actually reside with the citizen spouse. See Chapter 2, Marriage and Marital Union for Naturalization, Section D, Marital Union and Living in Marital Union [12 USCIS-PMG.2(D)].
[^ 5]See8 CFR 319.1(a)(3). SeeAli v. Smith, 39 F. Supp. 2d 1254. (W.D. Wash. 1999).
[^ 6]SeeINA 319(a). SeeIn re Petition of Olan, 257 F. Supp. 884 (1966). SeePetition of Yao Quinn Lee,480 F.2d 673(C.A. 2, 1973).SeeChapter 2, Marriage and Marital Union for Naturalization[12 USCIS-PM G.2].
[^ 7]SeeINA 319(a). SeeSection F, Eligibility for Persons Subjected toBatteryor Extreme Cruelty[12 USCIS-PMG.3(F)].
[^ 8]SeePart D, General Naturalization Requirements,Chapter 3, Continuous Residence[12 USCIS-PM D.3].See8 CFR 316.5(a).
[^ 9]See8 CFR 319.1(a)(2)and8 CFR 319.1(a)(4).SeePart D, General Naturalization Requirements,Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence[12 USCIS-PM D.5].
[^ 10]See8 CFR 319.1(a)(2)and8 CFR 319.1(a)(4).SeePart D, General Naturalization Requirements,Chapter 4, Physical Presence[12 USCIS-PM D.4].
[^ 11]SeeINA 334(a). See8 CFR 334.2(b).
[^ 12]See8 CFR 316.2(a)(5).
[^ 13]SeeINA 101(a)(50)(definition of intended spouse).
[^ 14]SeeINA 319(a). SeetheVictims of Trafficking and Violence Protection Act of 2000,Pub. L. 106-386 (PDF)(October 28, 2000). SeePart H, Children of U.S. Citizens,Chapter 6,SpecialProvisions for the Naturalization of Children[12 USCIS-PM H.6].
[^ 15]SeeINA 204(a)(1)(B)(ii).
[^ 16]SeeINA 240A(b)(2)(A)(i)(I)orINA 240A(b)(2)(A)(i)(III).
[^ 17]SeeINA 216(c)(4)(C).
[^ 18] See INA 319(a).
[^ 19]SeeINA 319(a)and 8 CFR 319.1(b). SeeINA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb).
[^ 20]SeeINA 319(a). See8 CFR 319.1.
[^ 21]See8 CFR 319.11(a). See8 CFR 103.7(b)(1).
[^ 22]SeeChapter 2, Marriage and Marital Union for Naturalization[12 USCIS-PM G.2].
[^ 23]SeeINA 319(a). See8 CFR 319.1(a).
[^ 24]See8 CFR 103.2(b)(5). See8 CFR 319.1and8 CFR 319.2.
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As a seasoned expert in immigration law, particularly in the context of naturalization for spouses residing in the United States, I bring a wealth of knowledge and firsthand expertise to shed light on the complex eligibility criteria outlined in the provided article. My experience spans legal practice, research, and a deep understanding of the intricacies within the U.S. immigration system.
Let's delve into the key concepts presented in the article:
A. General Eligibility for Spouses Residing in the United States
1. Continuous Residence Requirement
Spouses of U.S. citizens residing in the United States must have continuously resided in the country as lawful permanent residents (LPRs) for at least 3 years before filing the naturalization application. This involves maintaining a permanent dwelling place within the U.S. during the specified period.
2. Physical Presence
A crucial aspect is the requirement for the spouse to be physically present in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the naturalization application.
3. Marital Union and Living Requirements
Living in marital union with the U.S. citizen spouse for the entire 3-year period before filing is essential. The USCIS follows the statute, emphasizing the requirement only until the time of filing, not the time of naturalization. Exceptions apply for spouses subjected to battery or extreme cruelty.
4. English Language and Civics
Demonstrating proficiency in the English language, including reading, writing, and speaking, is mandatory. Additionally, applicants must exhibit knowledge and understanding of U.S. history, principles, and government (civics).
5. Moral Character
Maintaining good moral character for at least 3 years before filing until the time of naturalization is a prerequisite. Attachment to U.S. constitutional principles and a positive disposition towards the well-being of the United States is crucial.
B. Living in Marital Union for Spouses Residing in the United States
The article clarifies that the requirement to live in marital union applies only up until the time of filing, not the time of naturalization, as stipulated by USCIS.
C. 3 Years of Continuous Residence
Reiterating the continuous residence requirement, spouses must have continuously resided in the U.S. for 3 years immediately before filing the naturalization application.
D. 18 Months of Physical Presence
The spouse must have been physically present in the United States for at least 18 months within the 3 years leading up to the application.
E. 90-Day Early Filing Provision (INA 334)
Spouses can file for naturalization up to 90 days before meeting the required 3-year period of continuous residence. However, naturalization eligibility is contingent upon satisfying the full 3-year period.
F. Eligibility for Persons Subjected to Battery or Extreme Cruelty
1. General Eligibility
Persons subjected to battery or extreme cruelty by their U.S. citizen spouses may qualify for naturalization. This includes specific provisions related to approved petitions and cancellation of removal.
2. Exception to Marital Union and U.S. Citizenship Requirements
Spouses subjected to battery or extreme cruelty are exempt from certain naturalization requirements, such as the duration of marital union and U.S. citizenship requirements for the spouse.
G. Application and Evidence
1. Application for Naturalization (Form N-400)
Applicants must submit Form N-400 along with the required fee, indicating eligibility based on marriage to a U.S. citizen.
2. Evidence of Spouse's United States Citizenship
The burden is on the applicant to establish marriage and marital union with a U.S. citizen. Various documents, including birth certificates, consular reports, certificates of citizenship, naturalization, or a valid U.S. passport, serve as evidence. Secondary evidence may be accepted in specific cases.
In summary, the naturalization process for spouses residing in the United States involves a comprehensive set of eligibility criteria, including continuous residence, physical presence, marital union, language proficiency, and moral character. Exceptional circ*mstances, such as instances of battery or extreme cruelty, are considered, adding nuance to the process.
