When may I apply for citizenship if I am married to a U.S. citizen?
I just had an interesting issue arise at my San Francisco office. I received an inquiry from a potential client who wanted to know when she could apply for citizenship if she is married to a U.S. Citizen. The general rule is that when you are married to a U.S. citizen, you may apply in three years instead of waiting the usual five years. And because you are allowed to apply 90 days prior to the third year anniversary date, you may actually apply two years and nine months (approximately) after the anniversary date. See INA Section 334
But there is more than meets the eye when applying on the basis of your marriage. In order to succeed with your application, you must show that you meet the following requirements prior to filing your application with USCIS:
1. You are a permanent resident of the United States;
2. You have lived continuously in the United States for three years (minus 90 days);
3. You have lived in "marital union" (living together) with your U.S. Citizen spouse for three years ;
4. Your spouse has been a U.S. Citizen for the entire three years.
In order to file under this section, it is not necessary that you obtained your green card through your marriage. For instance, you might have obtained it through an employment-based sponsorship. Nevertheless, you may still apply on the basis of your marriage if you meet all of the requirements listed above.
The interesting issue in the inquiry I received is that I found a conflict between the statute and USCIS regulations. Although the statute requires that an applicant meet all requirements prior to the filing date; USCIS' internal regulations do not. 8 C.F.R. Section 319.1 requires that the applicant show she has been living in marital union with the U.S. Citizen three years preceding the date of examination on the application and that the spouse was a U.S. citizen during the duration of that period.
So, in the potential client's case, she was deemed ineligible based on the wording of the statute, but USCIS did not appear to examine their own regulations. She had filed two weeks early, according to USCIS because she was two weeks shy of being married for three years. But, if USCIS would have looked at their own regulations, the examiner would have come to a different conclusion. By the time she appeared for the interview in this case, the date of examination, the US citizen and his wife would have exceeded the three year requirement.
What do you do? If you find yourself in this situation, you can try to argue that the regulation is correct. The best course of action though is to wait a full three years from the date of your marriage and then file the application. Be prepared to document everything. You will ultimately save yourself time and money if you wait the extra three months.
