• Parviz Malakouti, Esq.

Green Card Holders with Spouses Who Naturalize: Is the Wait 3 Years or 5 Years?

Updated: Jun 14, 2020

Author: Parviz Malakouti, Esquire February 15th, 2020

Legal Permanent Resident Who’s Spouse Naturalizes: Wait 3 Years or 5 Years?

If you are a legal permanent resident (“LPR”) i.e. a green card holder, you are eligible to naturalize (gain citizenship) five years after you have gained your LPR status or three years after you have gained LPR status if you are married to a U.S. citizen. This assumes you have met the other qualifications for naturalization such as continuous residence, physical presence and good moral character.

The question arises: What happens if you have been an LPR for three years during which time you have been married to your spouse and your spouse has JUST now naturalized to become a U.S. citizen (“USC”)?

In that case, can you apply for citizenship NOW after only three years of LPR status based on your marriage to a U.S. Citizen or do you have to wait?

The answer is that you have to wait.

INA §319(a) [also codified as: 8 USC §1430] states that your U.S. citizens spouse has to have been a USC during the entire three year (minimum) period for which you have been an LPR, in order for you to apply for citizenship after three years of LPR status.

INA § 319(a) states:

“…within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period….”

Therefore, you would have to wait until either after three years of LPR status during which your spouse was a citizen for at least three years OR you have accrued five years of LPR status, whichever is shorter.

As a side note, during the time that you are waiting to become eligible to apply for naturalization, you need to be sure that you are maintaining both physical presence and continuous residence that are two separate concepts, which are often conflated.

If you have traveled and stayed outside of the United States for periods of time of six months or more, you may have broken the continuity of your residence in the United States, which may delay your ability to naturalize. However, you may qualify for the little known “Four year and One Day Rule.”…

Contact a qualified immigration attorney for case-specific advice.

Book a Consultation now!

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