Immigration

Marriage and U.S. Citizenship

By Ilona Bray, J.D., University of Washington Law School
Marriage to U.S. citizens makes foreigners eligible for a green card; that is, for U.S. lawful permanent residence. However, getting your green card is just the first step toward naturalization, or U.S. citizenship. The naturalization process is much the same if you received your green card through marriage or for some other reason, but a marriage to a U.S. citizen means you can potentially apply for U.S. citizenship sooner.

Marriage to U.S. citizens makes foreigners eligible for a green card; that is, for U.S. lawful permanent residence. However, getting your green card is just the first step toward naturalization, or U.S. citizenship. The naturalization process is much the same if you received your green card through marriage or for some other reason, but a marriage to a U.S. citizen means you can potentially apply for U.S. citizenship sooner.

Who Qualifies for a Green Card Based on Marriage

In order to obtain lawful permanent residence through marriage to a U.S. citizen, the foreign-born national will first need to prove that the marriage is lawful. That means not only that it is recognized by law, but that, for instance, neither person is underage or is already married to someone else.

For legal purposes, it doesn't matter whether the marriage took place in the United States or in another country. And same-sex marriages are recognized by U.S. immigration law, so long as they took place in the United States or in a country where same-sex marriage is legally allowed.

You also need to prove that the marriage is bona fide. That means that you truly intend to establish a life together, and are not submitting the application as a mere sham to get a green card.

Another important part of the application process is proving that the foreign-born person is not "inadmissible" to the United States due to past commission of crimes, affiliation with terrorist groups, major health problems, or various other grounds.

Inadmissibility can be a major problem for couples who are low income. U.S. immigration law does not allow someone to immigrate who is considered likely to become a "public charge." That means likely to require need-based public assistance (often referred to as "welfare").

Another ground of inadmissibility that's a common barrier to a marriage-based green card is when the foreign-born spouse has spent more than 180 days in the U.S. unlawfully, particularly after an illegal entry. An unlawful stay of between 180 and 365 days will, if and when the person leaves the U.S. for a visa interview at the U.S. consulate in his or her home country, create a three-year bar on returning to the United States. An unlawful stay of 365 days or more creates a ten-year bar.

A waiver of this bar may be available in some cases, based on showing hardship to one's relatives in the United States. (You will need a lawyer's help to apply for this waiver; or you may be able to avoid the entire issue by "adjusting status" in the United States, which is typically possible for couples where the immigrant entered legally, most likely on a visa or under the visa waiver program.)

Some Green Card Applicants Must Spend Two Years as "Conditional Residents"

If your marriage was less than two years old when you applied for the green card, USCIS wants a chance to take a second look at whether it is bona fide. You will therefore be what's called a "conditional resident" for two years. Those two years count as "permanent residence" for purposes of the lead-up to applying to U.S. citizenship, but an extra step gets added to the process.

Ninety days before your two years of conditional residence have ended, you and your U.S. citizen spouse will need to submit a joint petition using USCIS Form I-751, requesting that the conditions on your residence be lifted and that you be allowed to become a permanent resident.

Going From Green Card Holder to Naturalized Citizen in Three Years

After successfully getting through the process of obtaining a green card based on marriage to U.S. citizen, the foreign-born person has a major advantage when it comes time to applying for naturalized U.S. citizenship.

While most green card holders must wait five years before they naturalize, those married to and living with a U.S. citizen need to wait only three years.However, you must still be married, both when you apply for citizenship and up through the time when U.S. Citizenship and Immigration Services (USCIS) approves your naturalization request.

If the marriage ends or the two of you begin living apart, you will need to wait until a full five years have passed from the date of your approval for residence before you apply to naturalize. Or, if the U.S. citizen passes away before the immigrant becomes a U.S. citizen, the immigrant will lose the advantage of this exception and will need to wait five years from the date of approval for a green card.

By the way, this exception also applies to people who obtained their green card in some other way, so long as they were also married to and living with a U.S. citizen for three years before applying to naturalize.

Criteria for Becoming a U.S. Citizen

Although spouses of U.S. citizens can apply for citizenship sooner than others, they must still satisfy a number of criteria to become a naturalized U.S. citizen. These include that the immigrating spouse:

  • has held green-card holder status for at least three years
  • has lived in the U.S. continuously for the three years leading up to submitting the citizenship application, during which time the immigrant has not spent more than one continuous year outside the U.S.
  • has been physically present in the U.S. for at least half of the three years before submitting the citizenship application
  • has lived in the district or U.S. state where submitting the citizenship application for a minimum of three months
  • is at least 18 years old
  • has good moral character (and hasn't committed any crimes or other violations that would bar him or her from citizenship)
  • can demonstrate an ability to speak, read, and write in English
  • can pass a test regarding knowledge of U.S. history and government, and
  • is willing to swear to a belief in the principles of the U.S. Constitution and to be loyal to the United States (with modifications and exceptions in certain circumstances).

Form N-400 Begins the Naturalization Application Process

If you meet the U.S. citizenship eligibility requirements, the main part of the naturalization application process involves submitting Form N-400, together with photos, a copy of your green card, various other documents, and a fee, to USCIS.

When applying early based on a three-year marriage to a U.S. citizen, you'll need to remember to include documents that confirm your marriage, such as your spouse's birth certificate or naturalization papers proving that he or she has held citizenship for at least three years, your marriage certificate, and a copy of a document such as a jointly submitted tax return or jointly held mortgage showing that you've been living together as husband and wife for the required three years.

USCIS Will Contact You for an Interview

After you submit Form N-400 and your other documentation, the naturalization process is the same as for all other applicants. You must go to an USCIS-approved location for fingerprinting and later participate in a USCIS-scheduled interview. The interview will test your knowledge of U.S. government and history, and your interviewer will talk with you to test your knowledge of English and to review the information on your application.

If all goes well, you will be sworn in as a U.S. citizen soon after.

Questions for Your Immigration Lawyer

  • I am living in the U.S. unlawfully, and have married a U.S. citizen. Will I be able to apply for a green card?
  • What's the earliest I can submit my application for U.S. citizenship?
  • My marriage has had some difficulties, and my U.S. citizen husband sometimes goes to stay with his parents, or sleeps on a friend's couch. Will this affect my eligibility to apply for U.S. citizenship after three years?
  • My U.S. citizen spouse and I divorced briefly, then made up and remarried. When can I apply for U.S. citizenship?

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