U.S. Citizen Spouse Died: Can Immigrant Still Apply to Naturalize After Three Years?

by

 

In this video attorney Jacob Sapochnick addresses a somber but important topic: What happens when a U.S. Citizen dies, can a LPR spouse still apply for naturalization after 3 years?

To know more about this topic, just keep on watching.

Overview

Applying for Naturalization After the Death of an Immediate Relative

In this post we answer one of your frequently asked questions:

Q: I became a green card holder through my husband, who was born in the U.S. and was a U.S. citizen. Sadly, my husband died last year. I would like to apply to become a U.S. citizen as soon as possible. Can I still apply for naturalization after 3 years of having my green card?

A: This question comes up more often than we would like to admit.

As you may know as a general rule, a legal permanent resident (LPR) is eligible to apply for naturalization after being a green card holder for at least 5 years.

However, there is an exception to the rule. Spouses of U.S. Citizens are eligible to apply for naturalization after 3 years of being a permanent resident, so long as they are still married and living in the same household as their U.S. Citizen spouse. Couples that are no longer living together (such as where a separation occurs) do not qualify for the 3-year exception.

But what happens when the spouse dies?

This situation recently happened to one of our clients. She was able to prove that she was living with her U.S. Citizen spouse up until the time of his death and wanted to know if she could still take advantage of the 3-year rule to apply for naturalization.

Sadly, under section 319(a) of the INA, “A person is ineligible for naturalization as the spouse of a United States citizen, if, before or after the filing of the application, the marital union ceases to exist due to death or divorce….”

That means that where a marital union ended due to the U.S. Citizen spouse’s death, the legal permanent resident cannot take advantage of the 3-year rule and must wait to reach their five-year anniversary as a legal permanent resident (LPR) before they can apply for naturalization. It is permissible to file your application 90 days before reaching your fifth anniversary as a permanent resident.

Additionally, if you submitted your N-400 application for naturalization, and your U.S. Citizen spouse dies while your application is pending a decision with the U.S. Citizenship and Immigration Services (USCIS), you will no longer be eligible for the 3-year rule. In such circumstance, you would be required to withdraw your application and wait until you reach your 5-year anniversary as a permanent resident to re-apply.

This has had very devastating consequences for applicants. Unfortunately under the law, there is no relief currently available. If you are in this situation, and your N-400 remains pending with USCIS, we recommend that you consult with an experienced immigration attorney who can counsel you accordingly.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

Helpful Links

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.