Under the Immigration and Nationality Act (INA) 319(a) a permanent resident who resides in the United States may be eligible for naturalization on the basis of his or her marriage to a U.S. citizen. To be eligible, the applicant must comply with each of the requirements established in the law:
Age, at least 18 years old
Although a person under the age of 18 may be legally authorized to marry, to apply for naturalization, the applicant must be at least 18 years old.
The applicant permanent resident must have continuously resided in the United States after becoming a lawful permanent resident (LPR) for at least 3 years. Continuous residence means that the applicant maintained a permanent dwelling place in the United States for the statutorily required period of 3 years. It is important to understand that the years are counted immediately from the date of filing the naturalization application. Additionally, the applicant must have lived in marital union with his or her US citizen spouse for at least those 3 years.
Living in Marital Union
The applicant for naturalization must have been living in marital union with his or her citizen spouse for at least 3 years immediately preceding the time of filing the naturalization application. However, the INA does not require living in a marital union for the period between the date of filing the application and the date of naturalization (the date applicant takes the Oath of Allegiance). USCIS follows the language of the statute in requiring living in marital union only up until the time of filing. Accordingly, only the existence of a legally valid marriage is required from the date of filing the application until the time of the applicant's naturalization.
18 Months of Physical Presence
The law also requires that the applicant demonstrates physical presence in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the date of filing the application. Physical presence refers to the number of days the applicant is in the United States during the statutory period up to the date of filing for naturalization.
Filing early... 90-Day Provision (INA 334)
Applicants filing for naturalization on the basis of his or her marriage to a US citizen may file the naturalization application up to 90 days before the date he or she would first meet the required 3-year period of continuous residence. That said, it is important to understand that even if the applicant is interviewed at an early time, the applicant is not eligible for naturalization until he or she has satisfied the required 3-year period of residence. All other requirements for naturalization must be met at the time of filing.
Good Moral and Character
Like in any other immigration petition the applicant for naturalization must be able to demonstrate good moral and character. That means if the applicant has been arrested or convicted such circumstances must be properly addressed. Here are some examples of circumstances that may show a lack of good moral character include but aren't limited to:
- Any criminal conviction
- Habitual drunkenness
- Illegal gambling
- Polygamy (marriage to more than one person at the same time)
- Lying to gain immigration benefits
- Failing to pay court-ordered child support or alimony payments
- Confinement in jail, prison, or similar institution for which the total confinement was 180 days or more during the past 5 years
- Failing to complete any probation, parole, or suspended sentence before you apply for naturalization
Eligibility of Persons Subjected to Battery or Extreme Cruelty
As a result of legislative developments, on October 28, 2000, Congress expanded the provisions regarding naturalization based on marriage to a U.S. citizen. The amendments added that any person who obtained LPR status as the spouse, former spouse, or intended spouse of a U.S. citizen who subjected him or her to battery or extreme cruelty may naturalize under the provisions of the Immigration and Nationality Act.
Specifically, battered applicants must have obtained LPR status based on:
An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360);
An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning spouse of an abusive LPR, if the abusive spouse naturalizes after the petition has been approved; or
Special rule cancellation of removal for battered spouses and children in cases where the applicant was the spouse, or intended spouse of a U.S. citizen, who subjected him or her to battery or extreme cruelty.
Additionally, a person is also eligible for naturalization under the spousal naturalization provisions, if he or she had the conditions on his or her residence removed based on an approved battery or extreme cruelty waiver of the joint filing requirement for the Petition to Remove Conditions on Residence (Form I-751).