Can I apply to naturalize after three years via a same-sex spouse if I got residence another way?

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Question:

I’m a woman from El Salvador, and got married to another woman, a U.S. citizen, in New Hampshire last year. That was before the Supreme Court’s DOMA decision, so our same-sex marriage could not be used to get me a green card. Fortunately, I was able to qualify for asylum in the U.S. based on my fear of persecution as a lesbian woman in El Salvador. So I am legally in the United States — in fact, I just got my green card. My question now is how long I have to wait for U.S. citizenship? Do I have to wait a full five years, or can I take advantage of the three-year rule that applies to spouses of U.S. citizens even though I didn’t get my green card through her?

Answer:

Assuming you stay married to and living with your U.S. citizen spouse for the three years until you apply for citizenship – in fact, all the way through to your citizenship interview – you can, indeed, take advantage of this part of the immigration law. It doesn’t matter on what basis you got your green card. You could have gotten it through asylum, an employer, the diversity visa lottery, or pretty much any other basis.

The key is that you count three years of both marriage to and cohabitation with a U.S. citizen (same- or opposite-sex) before applying for citizenship. This rule won't apply if you separate or divorce prior to your naturalization interview, or even if you choose to stop living with your spouse. Unfortunately, you will also lose the exception if your spouse dies before your naturalization interview.

If something like this goes wrong and you can’t make use of the three-year rule, there’s another provision of the immigration law you should know about. As an asylee, one year of your time with asylum status counts as if you were a permanent resident. This is known as "rollback." In fact, if you take a look at your green card, you’ll notice that U.S. Citizenship and Immigration Services (USCIS) already took that into account, by backdating your permanent residence approval date by one year from your actual approval for U.S. residence. (See the U.S. Code of Federal Regulations 8 C.F.R. Section 209.2(f).)

So, although you have to complete five years as a permanent resident before applying for U.S. citizenship, the “rollback” rule means asylees have already completed one of those years the minute they get approved for their green card.

If, however, you wait longer than one year after receiving asylum to apply for U.S. permanent residence, that extra time will not count toward your permanent residency period. You will still have to wait a full four years from the actual date when you’re approved for a green card.

For more information on naturalization rules and procedures, see the articles on the "How to Become a U.S. Citizen" page of Nolo's website.

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