U.S. Citizen and Immigration Services (USCIS) has released a memo clarifying that
individuals who obtained lawful permanent residence by reason of an approved waiver
of the joint filing requirement under section 216(c)(4)(C) of the INA are also
eligible to apply for naturalization under section 319(a). The memorandum modifies
the October 15, 2002, policy memorandum entitled, "Instructions Regarding
the Expanded Meaning of Section 319(a)" (INS Policy Memo #89), to incorporate
one additional class of qualified applicants who may claim eligibility for naturalization
under section 319(a) of the INA, as amended.
Section 316(a) of the INA lists the general eligibility requirements for naturalization.
Under that section, a lawful permanent resident (LPR) must be a resident continuously
for a period of five years subsequent to obtaining LPR status before he or she
may apply for naturalization. However, section 319(a) of the INA provides that
if the LPR is married to a U.S. citizen (USC), the LPR may naturalize after only
three years if the LPR has lived in marital union with his or her USC spouse during
the three years immediately preceding the date of filing of the naturalization
application. The VTVPA amended INA section 319(a) by expanding this provision
to include spouses, former spouses, intended spouses, and children of USCs who
obtained lawful permanent residence by reason of having been battered or subjected
to extreme cruelty by their USC spouse or parent.
Clarification of Classes of Applicants Eligible for Naturalization under Section
319(a) of the Immigration and Nationality Act (INA), as amended by the Victims
of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 HQOPRD
70/33.1
The following three categories of individuals became eligible to apply for naturalization
under section 319(a) by the enactment of the VTVPA:
- Aliens who obtained lawful permanent residence by reason of an approved
Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant under
section 204(a)(1)(A)(iii) or (iv) of the INA, or under section 204(a)(1)(B)(ii)
or (iii), if the abusive spouse or parent naturalizes after the Form I-360
has been approved.;
- Aliens who obtained lawful permanent residence by reason of cancellation
of removal under section 240A(b)(2)(A)(i)(I), or 240A(b)(2)(A)(i)(III) of
the INA where the applicant was the intended spouse of a USC; or
- Aliens who obtained lawful permanent residence by reason of an approved
waiver of the joint filing requirement under section 216(c)(4)(C) of the INA.
A naturalization applicant whose application was denied on or after October 28,
2000, on the sole ground that s/he was not entitled to benefit under section 319(a)
of the INA based upon an approved waiver of the joint-filing requirement under
section 216(c)(4)(C), may seek reconsideration of the denial by filing a motion
to reopen with the appropriate USCIS office with the appropriate fee or fee waiver
request.
The preceding clarification of INS Policy Memo #89 is effective immediately and
applies to all naturalization applications filed by the above listed categories
of applicants pending on or filed on or after October 28, 2000.
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