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Expedited Naturalization For Spouses Of U.S. Citizens Working Overseas

by Cyrus D. Mehta

Section 319(b) of the Immigration and Nationality Act allows a spouse of a US citizen who is employed in certain capacities overseas to expeditiously apply for citizenship. The provision completely waives the residence and physical presence requirements for the spouse.

In order for the spouse to qualify for naturalization under Section 319(b), the citizen spouse must be “regularly stationed abroad” in the employment of the US government, US institutions of research as recognized by the Attorney General (8 C.F.R. Section 316.20(a)), a US corporation (or subsidiary) in the development of foreign trade or commerce of the US or if the citizen spouse is performing ministerial or missionary functions on behalf of a bona fide US organization.

The regulations at 8 Code of Federal Regulations (C.F.R.), implementing Section 319(b), provide more clarity. The citizen spouse need not be permanently assigned abroad, but at the same time the assignment need not be short or casual. The citizen spouse can still be in the US at the time of the other spouse’s naturalization if he or she is proceeding abroad for not less than one year pursuant to an employment contract or orders. 8 C.F.R. Section 319.2(a)(1).

Although the physical presence and continuous presence requirements are waived, the non-citizen spouse must still be a permanent resident. 8 C.F.R. Section 319.2(a)(2). This provision is immensely useful for spouses of US citizens who are employed for subsidiaries or branches of US corporations in other countries. The non-citizen spouse need not remain in the US to meet the three years of continuous residence before filing Form N-400, out of which at least half the time must have been spent physically in the US, as mandated under Section 319(a) of the Immigration and Nationality Act.

The eligible spouse has to file Form N-400, which can be done from overseas too, with the appropriate Service Center. The Service Center will schedule the fingerprint appointment at the appropriate US embassy or consulate overseas. The spouse can designate any USCIS office for a naturalization interview. It is best to designate an USCIS office that can conduct the interview and the oath on the same day, such as USCIS, Newark, NJ.

Once the interview is scheduled, the spouse will have to travel to the US for the interview and present evidence that he or she is indeed the spouse of an US citizen who is working overseas under the aforementioned criteria. Thus, if the citizen spouse is working for a subsidiary of an US entity overseas, proof has to be established that the overseas entity is indeed a subsidiary of a US corporation that is engaged in the foreign trade or commerce of the US. The non-citizen spouse will also have to declare in good faith at the time of the interview that he or she intends to reside with the citizen spouse abroad within 30-45 days after the naturalization and that she will take up residence within the US immediately upon the termination of the citizen spouse’s employment abroad. The non-citizen spouse is also required to notify the USCIS of any changes, such as cancellation of the citizen’s engagement abroad or if he or she is unable to reside overseas because the citizen spouse is employed abroad in an area of hostilities where dependants may not reside.

The non-citizen spouse must also be a person of good moral character, attached to the principles of the Constitution of the US, and favorably disposed toward the good order and happiness of the US, as well as comply with all the other requirements for naturalization except for the physical presence and continuous residence requirements. 8 C.F.R. Section 319.2(a)(3)(6). There appears to be no time requirement for the person to demonstrate good moral character under Section 319(b).

A person is ineligible for this benefit if the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant’s admission into citizenship, even though the applicant subsequently marries another US citizen. 8 C.F.R. Section 319.2(c).

This article originally appeared on on April 21, 2006.

About The Author

Cyrus Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.