Filing for US Citizenship while I-751 is Pending

By Reuben S. Seguritan


September 5, 2018


Lawful permanent residents with a conditional green card are those who obtained their lawful status in the US through marriage to US citizens. They can file for removal of the conditions on their green card by jointly filing Form I-751 or Petition to Remove Conditions on Residence with their US citizen spouse through whom they obtained conditional status and within 90 days before their conditional residence card expires.


Due to the lengthy delays in processing time, the USCIS has updated its rules and now allow I-751 applicants with I-797 receipt notices to have their travel and work authorization extended for 18 months after the expiration of their conditional residence cards. Furthermore, the lawful permanent residents can use the I-797 receipt notice to serve as evidence of their continued status even if their green card has expired because their I-751 petition is still pending.


As a general rule, a lawful permanent resident with a conditional residence card must file and obtain an approved Form I-751 or Petition to Remove Conditions on Residence before applying for US citizenship. When the I-751 petition is approved, the lawful permanent resident is issued a new green card that is valid for 10 years.


Because of processing delays, a conditional resident is allowed to file for naturalization (N-400) while his I-751 is pending. When filing, the I-751 receipt notice should be included in the application and a request should be made that both the I-751 and N-400 be adjudicated at the same time.


The lawful permanent resident should also include in the N-400 application evidence of his continued marriage and residence with the US citizen spouse for the entire 3 year period and also the period in between the I-751 petition and N-400 application submissions. Examples of evidence that may be submitted are: joint bank statements, joint mortgage documents, utility bills in the name of both spouses, joint insurance, travel documents, family photos and joint rental agreements. At the interview for either the I-751 or N-400, the US citizen spouse should be present with the lawful permanent resident in order to show that they have a genuine joint residence and marital union.


Section 319 (a) of the Immigration and Nationality Act (INA) states that a lawful permanent resident who has continuously lived in the US for at least 3 years and physically present for half that time may file for naturalization if he meets the following requirements: he is at least 18 years old; he is currently married to and living with the US citizen spouse; he must have been married to and living with that same US citizen for the past 3 years; his US citizen spouse has been a US citizen for the past 3 years and he has the requisite good moral character. He should not have been convicted of any crime that will result in the denial of the application or subject him to removal proceedings.


If the US citizen spouse is regularly stationed abroad with the lawful permanent resident, then the lawful permanent resident may file for naturalization immediately and does not have to demonstrate any specific period of residence or physical presence in the US. This is provided by Section 319 (b) of the INA. However, the lawful permanent resident must comply with all of the requirements stated above for naturalization except for the requirements of continuously living in the US for at least 3 years and physically present in the US for half that time.


Hence, the lawful permanent resident in this case must also prove the following: he was lawfully admitted for permanent residence in the US; the marriage with the US citizen was entered into in accordance with the laws of the place where the marriage occurred; that the marriage with the US citizen has not been judicially annulled or terminated; the marriage is genuine and not entered into to gain an immigration benefit and; no fee or other consideration (except lawyer’s fees) was given for filing the immigrant or fiancé/fiancée visa petition that forms the basis for admission into the US.