Conditional Residents Can Directly Apply for Naturalization
Posted February 15, 2002

The INS confirmed in a letter, dated December 18, 2001, that Conditional Permanent Residents are not required to wait until approval of their Petition to Remove the Conditions on Residency (I-751) before applying for U.S. citizenship. Rather, once they meet the required period of residency to qualify for citizenship, they can apply for citizenship by filing the Application for Naturalization, even if the I-751 is still pending. The availability of this procedure is not clearly addressed in the law.

Conditional permanent residence is issued in marriage-based green card cases when the applicant has been married less than two years at the time of the approval of the green card application. Marriage-based cases are those initiated by the petition of a U.S. citizen for his/her foreign spouse. This term does not refer to the derivative green card cases filed by dependent spouses in employment-based cases.

Conditional permanent residence is valid for two years. Individuals who receive conditional permanent residence must file the I-751 within the 90-day window preceding the expiration of the conditional status. The I-751 requirement is a measure to deter marriage fraud by allowing INS to take a "second look" at marriages that were of short duration at the time of the INS initial case decision. If the conditions are removed, the individual has unconditional permanent residency, valid from the date of the original case approval, rather than the date the conditions were removed.

In some locations I-751 filings take a substantial amount of time to process, sometimes close to two years. As many MurthyBulletin and MurthyDotCom readers are aware, permanent residents who are married to U.S. citizens are eligible to file for Naturalization upon reaching three years of permanent residence. Since the I-751 is filed after two years and often takes more than a year, many people reach the three-year mark for citizenship eligibility while their I-751s are still pending. Therefore, the question arises as to whether they must wait for a decision on the I-751 before filing for their citizenship. Many persons, including attorneys, may have assumed that the I-751 has to be approved before one can file for naturalization.

INS has now clarified the issue and will accept naturalization applications from persons with pending I-751s who are otherwise eligible for citizenship. The agency did not specify whether they would make the decisions on the naturalization application while the I-751 was still pending, or if the decision would first be made on the I-751. It would seem, based upon the law requiring a person to be a lawful permanent resident (LPR, or green card holder) in order to qualify for citizenship, that the application for naturalization could not be approved until the approval of the I-751. If the I-751 is denied, the person is no longer an LPR.

The ability to file for naturalization, even if the I-751 is still pending, should greatly expedite the citizenship process for these applicants. We thank the INS for its helpful clarification.