One of the most frequently misunderstood provisions of naturalization is the timing eligibility. While the vast majority of lawful permanent residents must apply after five years continuous residence, the immigration law also provides that some spouses of U.S. Citizens may apply after only three years. In general, the permanent resident spouse must demonstrate, among other things, that he/she has been a resident for three years; been physically present within the United States for at least half that time; and been living in marital union with the US citizen spouse for at least three years before filing. What happens though if a lawful permanent resident is abused by his/her citizen spouse? Or what if someone is granted lawful permanent residence after demonstrating that he/she has been the subject of abuse through a Violence Against Women (“VAWA”) petition (filed on the I-360)? How does the immigration law treat these classes of people with respect to when they apply for naturalization?
Fortunately, the USCIS does recognize that individuals in these types of situations should not be penalized on account of their abusive spouses/ex-spouses. INA Section 319(a) was amended through the Victims of Trafficking and Violence Protection Act of 2000 to allow spouses and ex-spouses who have obtained green cards, on the basis of being battered or the victim of extreme cruelty by their marital partner, to apply after three years. In order to be eligible, the applicant must have procured permanent residence through either
•· An approved I-360 petition as the spouse of a U.S. Citizen
•· An approved I-360 petition as the spouse of a lawful permanent resident if the abusive spouse naturalizes after the petition has been approved
•· Cancellation of removal based on battery or extreme cruelty
•· An approved I-751 waiver to remove conditions on residence if the marriage was entered into good faith and the foreign spouse was subject to battery or extreme cruelty by the US Citizen or LPR spouse
An individual who falls into any of above classes is specifically exempted from the requirement of living “in marital union” with the US Citizen spouse for at least three years. To require otherwise would be counterintuitive and essentially penalize abused green card holders from filing self-petitions on account of their abusive partners. However, it is important to note that the applicant must otherwise meet all the other requirements for naturalization, including passing the English and civics portions of the test. Additionally, the applicant must still satisfy the physical presence and continuous residence requirements and show good moral character for the three years in question. If the applicant has poor proficiency with English; lacks knowledge of American history; has any criminal charge; or has taken long trips (180 days or more is a flag), an application for naturalization may be problematic. Furthermore, an immigration service officer (ISO) will likely review the applicant’s “alien file” or “A file” to determine how the applicant procured residence, especially if one is applying on this basis. If there are any irregularities or issues in terms of how the applicant secured permanent residence (ie., the application was improvidently granted or misrepresentations were made), it would be prudent to consult with an attorney before rushing to file an application.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.