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

Sadly, the portion of U.S. immigration law allowing a person who has been a permanent (or conditional) resident and married to, as well as living with, a U.S. citizen for three years to apply for U.S. citizenship at the end of that time no longer applies if the U.S. citizen dies.

By , J.D. ● University of Washington School of Law
Updated 4/25/2024

Let's take a hypothetical situation: A man applies for a green card through his wife, who was born in the United States and therefore was a U.S. citizen. He successfully obtains a marriage-based green card, which he has for a little over three years. Tragically, however, the American wife dies. The green-card-holding widower had been looking forward to obtaining U.S. citizenship as soon as possible, so as to help his parents immigrate to the United States. In fact, he had been hoping to use the exception allowing spouses of U.S. citizens to apply after three years with a green card, rather than the usual five. But can he still do that after his citizen wife's passing?

Three-Year Naturalization Rule for Spouses of U.S. Citizens Provides No Benefit After a Death

Sadly, the portion of U.S. immigration law allowing a person who has been a permanent (or conditional) U.S. resident and married to as well as living with a U.S. citizen for three years to apply for U.S. citizenship at the end of that time no longer applies if the U.S. citizen dies. (See the Immigration and Nationality Act at I.N.A. § 319(a) or 8 U.S.C. § 1430(a).)

Although the I.N.A. doesn't say this outright, it is referenced in the Code of Federal Regulations (8 CFR § 319.1(b)(2)(i).), which states:

A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.

Without a living U.S. spouse at home, the immigrant will simply have to wait the same length of time as everyone else to naturalize.

How Long Will the Immigrant Spouse of a Deceased U.S. Citizen Have to Wait to Naturalize?

The immigrant in our hypothetical example will have to wait the full period required of most applicants before filing an N-400 application for naturalization. That is normally five years minus 90 days (unless another exception applies). See When Can I Apply for U.S. Citizenship? for a full discussion of the minimum time required before submitting an application.

In fact, even if the immigrant had already submitted an N-400, attended the naturalization interview, passed the English and civics exams, and received approval from the USCIS officer, he would not be allowed to go forward with the swearing-in ceremony if his wife died before it took place and he was relying on her citizenship to apply early. This is implied by the federal regulations, which state, "before or after the filing of the application." And it's made even clearer in a policy manual published by U.S. Citizenship and Immigration Services (USCIS), which states, "An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen dies any time prior to the applicant taking the Oath of Allegiance."

Getting Legal Help

When in doubt about when you can or whether you should apply to naturalize, seeking assistance from an experienced immigration attorney can be a wise move. The attorney can also help prepare the naturalization paperwork and attend the USCIS interview with the applicant.

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