While most permanent residents are not eligible to file for US Citizenship until they have had their green cards for five years, some individuals may apply after three years under Section 319(a) of the Immigration and Nationality Act. In order to be eligible under this section, the applicant must demonstrate that he/she:
1) Has been lawfully admitted for permanent residence to the United States;
2) Has resided continuously within the United States for a period of at least three years after having been lawfully admitted for permanent residence;
3) Has been living in marital union with the citizen spouse for three years before the date of the examination on the application, and the spouse has been a United States citizen for the duration of the three year period;
4) Has been physically present in the US for periods totaling at least 18 months;
5) Has resided for at least three months preceding the filing of the application;
6) Has resided continuously within the United States from the date of the application for naturalization until time of admission to citizenship;
7) For all relevant periods, has been and continues to be a person of good moral character, attached to the principles of the Constitution;
8) Has complied with all other requirements for naturalization.
At first glance, many of these requirements seem self-explanatory and simple enough to satisfy. However, in practice, some of the criteria are interpreted very strictly by USCIS examiners. For example, the applicant must demonstrate that the US Citizen Spouse has been a United States Citizen for the full three years while the applicant was married to him/her. In some cases, the US Citizen may be a naturalized citizen. Some people have made the mistake of applying too early, misunderstanding the regulations and erroneously believing that you only have to be married to a US Citizen and have the green card for three years-which is not entirely accurate. In other words, even if you have been married to your spouse for three years and have had your green card for three years, your case may still be denied if your spouse has not been a US Citizen for the entire three years.
Marital Union Requirement
Another potentially troublesome issue for many Section 319 applicants is proving that they have lived in “marital union” with their US Citizen spouses. It is not enough to demonstrate that the couple has been legally married for three years. USCIS will normally expect the applicant to physically live with the spouse. The Code of Federal Regulations indicates: “an applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the spouse to establish, in each individual case, that a particular marital union satisfies the requirements of this part.” The notion of marital union can be compromised and undermined by:
- Divorce, death or expatriation
For example, if after the application is filed, the couple subsequently divorces, the applicant will no longer be able to meet the marital union requirement. Along the same lines, if a couple is legally separated before or during the pendency of the application, the continuity of marital union will be considered broken. Things can get especially challenging when a couple is informally separated. Under these types of circumstances, the applicant must demonstrate to the satisfaction of the examiner that notwithstanding the marital discord or problems, the married partners are still a couple.
Continuous and Physical Presence and Good Moral Character Issues
In addition to the above, the applicant is not relieved of satisfying the other criteria for naturalization. Any long trips in excess of six months within the statutory period can potentially disrupt an applicant’s continuous presence and potentially lead to a denial. Similarly, any criminal arrests, convictions, or bad acts that reflect upon an individual’s character can raise issues as the individual’s fitness to become a naturalized citizen.
If you or someone you know who is thinking about naturalization under the “three year rule” has marital issues; criminal issues; extended trips abroad; fraud issues; or selective service issues, among others, we encourage you to consult with an immigration attorney prior to filing the application.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.