Chapter 5: Conditional Permanent Resident Spouses and Naturalization
A. General Requirements for Conditional Permanent Residents
Since 1986, certain spouses of U.S. citizens have been admitted to the United States as LPRs on a conditional basis for a period of two years.[1] See INA 216. See Immigration Marriage Fraud Amendments of 1986, Pub. L. 99-639 (November 10, 1986). The time period spent as a CPR counts toward the satisfaction of the continuous residence and physical presence requirements for naturalization. See INA 216(e). In general, a conditional permanent resident (CPR) must jointly file with his or her petitioning spouse a Petition to Remove Conditions on Residence (Form I-751) with USCIS during the 90-day period immediately preceding the second anniversary of his or her admission as a CPR in order to remove the conditions.[2] See INA 216(c), INA 216(d), and INA 216(e). See H.R. REP. 99-906, 1986 U.S.C.C.A.N. 5978. An approval of a petition to remove conditions demonstrates the bona fides of the marital relationship.
In order for USCIS to approve the petition to remove conditions, the CPR must establish that:
The marriage upon which the CPR admitted to the United States was valid;
The marriage has not been terminated; and
The marriage was not entered into for purposes of evading the immigration laws of the United States.[3] See INA 216(d)(1).
In general, USCIS requires that an applicant for naturalization must have an approved petition to remove conditions before an officer adjudicates the naturalization application. However, certain CPRs may be eligible for naturalization without filing a petition or having the conditions removed if applying for naturalization on the basis of:
Marriage to a U.S. citizen employed abroad; or
Qualifying military service.[4] See Section C, Spouses Eligible to Naturalize without Filing Petition to Remove Conditions.
B. Spouses who Must Have an Approved Petition Prior to Naturalization
In all cases, a CPR applying for naturalization on the basis of marriage must have an approved petition prior to naturalization if the CPR:
Has a pending petition to remove conditions at the time of filing the Application for Naturalization; or
Reaches the 90-day period to file the petition to remove conditions prior to taking the Oath of Allegiance.[5] See INA 216(d)(2).
1. Spouses who Reach Petition Filing Period Prior to Naturalization
In most cases, the 90-day period for filing the petition to remove conditions will have passed prior to an applicant becoming eligible to apply for naturalization. However, in some cases involving applicants whose citizen spouse is employed abroad and in cases in which a late filing of the petition to remove conditions is permitted, the 90-day filing period will start after filing for naturalization.
Under these circumstances, the applicant must file the petition to remove conditions and the petition must be adjudicated prior to or concurrently with the naturalization application.
2. Spouses with Pending Petitions and Naturalization Applications
An application for naturalization may not be approved if there is a pending petition for removal of conditions. If an applicant’s petition to remove conditions is pending at the time of filing or is filed prior to the interview, USCIS will adjudicate the petition to remove conditions prior to or concurrently with the adjudication of the naturalization application.[6] An officer should conduct the naturalization examination even if the petition to remove conditions is not in the CPR spouse’s A-file. The officer should follow internal procedures to request the petition. The officer must not approve the CPR spouse’s naturalization application until the officer has reviewed and approved the petition to remove conditions.
3. Failure to File or Denial of the Petition to Remove Conditions
The CPR status of an applicant is terminated and he or she must be placed into removal proceedings if:
The applicant fails to file the petition to remove conditions; or
If the petition to remove conditions is filed, but the petition is denied.[7] See INA 216(c)(2) and INA 216(c)(3).
C. Spouses Eligible to Naturalize without Filing Petition to Remove Conditions
1. Conditional Residents Filing on the Basis of Qualifying Military Service
Applicants for naturalization who qualify on the basis of honorable military service in periods of hostilities may be naturalized whether or not they have been lawfully admitted for permanent residence.[8] See INA 329. See Part I, Military Members and their Families, Chapter 3, Military Service during Hostilities (INA 329), Section F, Conditional Permanent Residence and Naturalization during Hostilities. For this reason, such applicants are not required to comply with all of the requirements for admission to the United States, including the requirements for removal of conditions.
Accordingly, CPRs who are filing on the basis of such qualifying military service are not required to file a petition to remove conditions and may be naturalized without the removal of conditions from their permanent resident status.
2. Conditional Residents Filing as the Spouse of a U.S. Citizen Employed Abroad
A spouse of a U.S. citizen employed abroad based on authorized employment is not required to have any specific period of residence or physical presence in order to naturalize.[9] See INA 319(b). See 8 CFR 319.2. Consequently, a CPR spouse is not required to file the petition to remove conditions if the spouse files his or her naturalization application before he or she reaches the 90-day filing period to remove the conditions on residence.[10] See INA 216(d)(2). Additionally, any conditional permanent resident who is otherwise eligible for naturalization under INA 329 (based on military service), and who is not required to be an LPR as provided for in INA 329, is exempt from all of the requirements of INA 216. See Part I, Military Members and their Families, Chapter 3, Military Service during Hostilities (INA 329).
A CPR spouse of a U.S. citizen employed abroad may naturalize without filing a petition to remove conditions if:
The CPR spouse has been a CPR for less than one year and nine months; and
The CPR spouse does not reach the 90-day filing period for the petition to remove conditions prior to the final adjudication of his or her naturalization application or the time of the Oath of Allegiance.[11] If the CPR spouse reaches the 90-day filing period prior to taking the Oath of Allegiance, the applicant must file the petition to remove conditions and it must be adjudicated prior to the taking of the Oath of Allegiance. See INA 319(b).
Even though the CPR spouse is not required to file the petition to remove conditions, he or she must satisfy the substantive requirements for removal of the conditions.[12] See INA 319(b) and INA 318. An applicant must satisfy all naturalization requirements, including establishing he or she has been lawfully admitted for permanent residence in accordance with all applicable provisions of the INA. Therefore, the CPR spouse must establish that:
The marriage was entered into in accordance with the laws of the place where the marriage occurred;
The marriage has not been judicially annulled or terminated;
The marriage was not entered into for the purpose of procuring an alien's admission as an immigrant; and
No fee or other consideration was given (other than attorney's fees) for filing the immigrant or fiancé(e) visa petition that forms the basis for admission to the United States.[13] See INA 216. See 8 CFR 216.4(c).
An officer must not approve a CPR spouse’s naturalization application unless the spouse meets these requirements.[14] See INA 319(b) and INA 318. An applicant must satisfy all naturalization requirements, including establishing he or she has been lawfully admitted for permanent residence in accordance with all applicable provisions.
D. Conditional Permanent Residents Admitted as Entrepreneurs
If a CPR spouse is admitted as alien entrepreneur,[15] See INA 216A (EB-5 alien entrepreneurs). USCIS will make a determination on the CPR’s petition to remove conditions before approving the CPR’s naturalization application.