Conditional Resident Awaiting I-751 Approval? Consider Filing N-400 for Naturalization

Noncitizens who are granted a green card based on marriage to a U.S. citizen, but whose marriage was less than two years old when approved, receive a "conditional" green card, valid for only two years. These conditional residents must apply to have the conditions on their green card removed before it expires. To do so, they must submit Form I-751 (Petition to Remove Conditions on Residence) 90 days before their expiration date, at the earliest.

In the past, this process was relatively quick, especially if the spouses were still married and filing jointly. But it's been taking longer and longer. In fact, United States Citizenship and Immigration Service (USCIS) processing times for Form I-751 are frequently known to take longer than a year. That's a complicating factor for conditional residents hoping to become U.S. citizens, but there are ways to deal with it, as described in this article.

Why Lengthy USCIS Processing Times Are a Concern Conditional Residents

The long wait for a USCIS decision can raise many issues for I-751 applicants. That's because, after three years of residency in the U.S., green card holders living with their U.S. citizen spouses are eligible for naturalization. Thus, many people will be eligible to naturalize before they know whether the conditions have been removed from their green card to make them permanent residents. Yet one of the basic requirements for U.S. citizenship is that one have a permanent U.S. green card.

Fortunately, during USCIS processing, you shouldn't have to worry about being deported. Conditional residents are still considered to be in lawful status and can maintain work and travel authorization. Their receipt notice from USCIS will prove this, by showing its own expiration date. (The normal validity period shown on the receipt notice is 18 months, though this is sometimes extended, typically in light of USCIS processing delays.)

If, however, your I-751 is still pending at USCIS and you need to show your status for work or travel purposes, you will need to get a stamp from USCIS to use as proof of your continued authorization. This is called an I-551 or ADIT stamp, and it normally goes in your passport. Call the USCIS Contact Center to arrange for one. It might simply send you appropriate documentation, consisting of a Form I-94 with ADIT stamp, DHS seal, and your printed photo. Or, it might make an appointment to go to a USCIS office and get the stamp placed directly into your passport. (Call early in the day, because navigating the phone tree takes a while, and you are likely to have to wait for a call back.)

You could also try requesting an in-person appointment directly, via USCIS's online "My Appointment" portal, but getting one isn't guaranteed; the agency will evaluate your need after you submit the request.

The I-551/ADIT stamp normally lasts for a year.

Confirm You Are Eligible for Naturalized U.S. Citizenship

Conditional residents with a pending I-751 will, before moving forward, want to confirm that they are eligible for naturalization beyond simply meeting the three-year residency requirement. Additional requirements include "good moral character" for the past three years, being able to read, speak, and write English, being able to pass a U.S. civics and history test, and being willing to declare an oath of allegiance to the United States.

For people who have been convicted of, or arrested for, a crime, it is especially important to consult an immigration attorney before applying for naturalization. Many crimes can lead to removal from the United States, even for legal residents. And the list of types of crimes that will bar someone from naturalized citizenship, whether temporarily or permanently, is even longer.

Conditional residents who are divorced from, or no longer living with, their U.S. citizen spouses are not eligible to apply for naturalization in three years (instead of the usual five). They might, however, qualify to have the conditions removed from their green cards with a waiver, based either on hardship, the fact of their divorce after a good faith marriage, or abuse within that marriage.

Complete Form N-400 and File With Your I-751 Receipt

If you qualify for naturalization, you can complete and submit USCIS Form N-400 (Application for Naturalization). With the N-400, you'll include not only the usual accompanying documents and fee, but a copy of your I-751 receipt notice and a cover letter explaining that you want to naturalize under "I.N.A. Section 319(a)." This section of the Immigration and Nationality Act (I.N.A.) allows people who have been married to and living with a U.S. citizen for a full three years to apply for naturalization.

The letter should also state that you wish to have USCIS adjudicate (make a decision on) your I-751 and N-400 together at your naturalization interview.

It is important to include evidence that you have been physically living with someone who is a U.S. citizen for the past three years as well, including copies of your home lease or mortgage, utility and other bills, bank account statements, family photos, and any other relevant documents. (Keep in mind that the spouse needs to have been a citizen for the entire three years.)

Hopefully, USCIS will agree to consider the applications simultaneously; but they have been known to simply say "No" to doing this, in which case they'll put your naturalization case on hold while your I-751 is being processed.

Attend Naturalization Interview With U.S. Spouse

Unlike the normal naturalization procedure, if your I-751 is still pending and you're scheduled for a naturalization interview, your U.S. spouse should plan to accompany you there. (This was clarified in a document called USCIS' Processing of Concurrently Pending Forms N-400 and Forms I-751.) Having both spouses attend is in keeping with your having jointly filed the I-751, and also helps verify that you qualify for naturalization after three years because you've been living together.

At your naturalization interview, USCIS should (if it was able to successfully consolidate your files, an issue discussed next) be able to first make a decision on your I-751 and, if it approves that, make a decision on your N-400 naturalization application.

Unfortunately USCIS doesn't always manage to consolidate the files or transfer an I-751 to the office with the N-400 application. That would mean that, even if you pass all the citizenship exams and are apparently eligible to naturalize, the USCIS officer might tell you something like, "We'll be happy to approve you for U.S. citizenship as soon as our other office approves your I-751 application." You will have to wait, since you will not be eligible for naturalization until the conditions are removed from your residency.

Getting Legal Help

The strategy described in this article involves a complex process, and you will be dealing with a difficult, overworked government bureaucracy. Different offices sometimes follow different procedures. To make sure it all goes smoothly, it's worth getting an immigration lawyer's help, if possible.