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

Why you might not need to wait for your permanent green card before submitting your U.S. citizenship application.

Noncitizens who are granted a green card based on marriage to the U.S. citizen who have been married for less than two years are granted a “conditional” green card, which is valid for two years. These conditional residents must apply to have the conditions on their green card removed before it expires. Conditional residents submit Form I-751 (Petition to Remove Conditions on Residence) 90 days before their green card expires, at the earliest. In the past this process was relatively quick, especially if the spouses were still married and filing jointly.

As of 2018, however, United States Citizenship and Immigration Service (USCIS) processing times for Form I-751 have been taking longer, more than a year in many cases. During this time, conditional residents are still considered in lawful status and can maintain work and travel authorization.

Due to increased processing times, the amount of time immigrants with pending I-751s are able to maintain work and travel authorization with their expired green card and I-751 receipt alone has been increased from 12 to 18 months. After 18 months, if your I-751 is still pending at USCIS, you will need to get a stamp from a local USCIS office as proof of your continued work and travel authorization.

The extended processing time for I-751s is significant, because after three years of residency in the U.S., green card holders living with their U.S. citizen spouses are eligible for naturalization. This means that many people will be eligible to naturalize before they know whether the conditions have been removed from their green card and they have thus been approved for permanent residence.

Confirm You Are Eligible for Naturalization

Conditional residents with a pending I-751 will first want to confirm that they are eligible for naturalization beyond 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 declaring an oath of allegiance to the United States.

For people who have ever been convicted of, or arrested for, a crime it is especially important to consult an immigration attorney before applying for naturalization as many crimes can lead to removal from the U.S., even for legal residents.

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, even though they may still qualify to have the conditions removed from their green cards with a waiver.

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

People who qualify for naturalization should complete USCIS Form N-400 (Application for Naturalization). With the N-400, they should include their I-751 receipt and also a cover letter explaining that they 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 residing with a U.S. citizen spouse for 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 living with your U.S. citizen spouse 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.

When you are scheduled for your naturalization interview, USCIS will first make a decision on your I-751 and, if it is approved, next make a decision on your N-400. Your spouse should accompany you to your interview, as he or she is jointly filing the I-751 with you, and also to verify that you qualify for naturalization in three years because you are living with your spouse.

Possible Problems With Filing Forms I-751 and N-400 Together

There is a possibility that USCIS will not transfer your I-751 to the office that has your N-400 application. In this case you may appear for your naturalization interview and not be able to go forward until your I-751 application is transferred, because you will not be eligible for naturalization until the conditions are removed from your residency. This can be a complex process, so it's worth getting a lawyer's help if possible.

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