U.S. Citizen Spouse Died: Can Immigrant Still Apply to Naturalize After Three Years?

Sadly, the portion of U.S. immigration law allowing a person who has been a permanent (or conditional) resident and married to, as well as living with, a U.S. citizen for three years to apply for U.S. citizenship at the end of that time no longer applies if the U.S. citizen dies.

By , J.D. · University of Washington School of Law

Let's take a hypothetical situation: A man became a green card holder through his wife, who was born in the United States and so was a U.S. citizen. He obtains a green card, and has it for a little over three years. Tragically, however, the wife dies. In the meantime, the green card holding widower had been looking forward to obtaining U.S. citizenship as soon as possible, so as to help his parents immigrate to the United States. In fact, he'd been hoping to use the exception allowing spouses of U.S. citizens to apply after three years with a green card, rather than the usual five. But can he still do that after his wife's passing?

Three-Year Naturalization Rule for Spouses of U.S. Citizens Doesn't Apply After a Death

Sadly, the portion of U.S. immigration law allowing a person who has been a permanent (or conditional) U.S. resident and married to, as well as living with, a U.S. citizen for three years to apply for U.S. citizenship at the end of that time no longer applies if the U.S. citizen dies. (See the Immigration and Nationality Act at I.N.A. § 319(a) or 8 U.S.C. § 1430(a).)

Although the I.N.A. doesn't say this outright, it is referenced in the Code of Federal Regulations (8 CFR § 319.1(b)(2)(i).), which states:

A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.

How Long Will the Immigrant Spouse of a Deceased U.S. Citizen Have to Wait to Naturalize?

The immigrant in our hypothetical example will have to wait the full period required of most applicants before filing an N-400 application for naturalization. That's normally five years minus 90 days (unless another exception applies). See When Can I Apply for U.S. Citizenship? for a full discussion of the minimum time required before submitting an application.

In fact, even if the immigrant had already submitted an N-400 before the wife died, he would not be allowed to go forward with the swearing-in ceremony if relying on her citizenship to apply early. This is implied by the C.F.R., which says "before or after the filing of the application." And it's made even clearer in a policy manual published by U.S. Citizenship and Immigration Services (USCIS), which states, "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."

Getting Legal Help

When in doubt about when or whether to naturalize, seeking assistance from an experienced immigration attorney can be a wise move. The attorney can also hep prepare the naturalization paperwork and attend the interview with the applicant.

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