Clarification on the 3 years MINUS 90 days...

[vylex 0]

Sorry if this topic has been beaten to death but I wanted clarification:

I read this excerpt:

If you are applying based on 5 years as a Permanent Resident or 3 years as a Permanent Resident married to a U.S. citizen, you may file for naturalization up to 90 days before you meet the continuous residence requirement. For example, if you are applying based on 3 years of continuous residence as a Permanent Resident married to a U.S. citizen, you can apply any time after you have been a Permanent Resident in continuous residence for 3 years minus 90 days. You may send your application before you have met the requirement for continuous residence only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application. You must also meet all the other eligibility requirements when you file your application with USCIS.

Ok before I go into this more I am confused simply because of two contradicting situations.

1) My cousin was recently approved for her Naturalization (yay!) and she filed 3 years minus 90 days.

2) My close friend also filed 3 years minus 90 days. However when he went to the interview, they told him he filed too early. I was stunned to hear that...especially when they let him do the fingerprinting and had him wait for the interview before dropping the bomb. I never pressed him for info but I am thinking he did something like 3 years minus 91 days.

Anyway, assuming my wife completes the 3/3/3 rule (with 2 week vacations here and there during this period) I am assuming we can send in the application in 2 years and 9 months (plus a day or two to make sure it's 90 days!). Is this a correct assumption? My wife was a CR-1 so it seems that the continous residence is in sync with the physical presence.

This part confused me:

"You may send your application before you have met the requirement for continuous residence only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application."

What's the difference between "sending the application before meeting the continuous residence requirement" (2 years 9 months) vs. filing after living with and married to me for 3 full years?

Thanks for any clarification. I will DEFINITELY ask the USCIS as well but I just wanted a general concensus from you folks as well.

[kmineo 0]

I hear they do take the 90 days seriously. So most people think of 90 days as 3 months. Not true if you have months with 31 days in it. I would just be safe and send it in 3 years minus 90 days and then add a week or two. In the long run is a week or two really going to delay the process that much. I mean that is so tiny compared to the time you have been dealing with the USCIS.

[NickD 202]

Many of us here applying through marriage had a considerable wait before our spouse received their permanent resident card, so were married much longer than that three year minimum LPR status. If your situation is different, have to wait until your 3rd wedding anniversary before sending it in.

You count the from the day of the 3rd anniversary of your LPR resident day back 90 days on the calendar, but I waited another couple of days before sending my wife's in, not by choice, just had too many other things to do and needed a good nights sleep for double checking the forms and the evidence.

Do not know how many interviewing officers the USCIS has, but regardless of how many, can get that many different impressions of the USCIS depending on which IO you happen to get. Or even if they are having a good or bad day, that is where luck comes in.

[vylex 0]

Many of us here applying through marriage had a considerable wait before our spouse received their permanent resident card, so were married much longer than that three year minimum LPR status. If your situation is different, have to wait until your 3rd wedding anniversary before sending it in.

Thanks for the info. However, even if the wait for the green card was considerable, the date on it will be the date she was granted entry correct? That would still be the start date regardless of when the card was actually received.

I guess I am confused because I can't see how the continuous residency requirement beats the requirement for "being married to and living with the USC spouse for 3 years". Maybe if it was a K-3 visa situation where couples can be together before the green card is officially issued?

For example, my wife was here since November 2007 but we were married since 2006 although we were not living together yet (waiting for the CR-1). Based on that criteria, her continuous residence started in November 2007 (the time she migrated) so I can theoretically file November 2010 minus 90 days.

However the statement, "you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application." disallows the continuous residency requirement simply because we have not lived together for 3 years although we would have been married for 4+ years.

Sorry if I am confusing you. I can wait until the 3 full years but am really just trying to understand that excerpt. It just seems very contradicting given my situation.

[*JG* 2]

It's not a big deal at that point cause you should have the 10 year green card in hand by then.

I think it's a bigger deal when lifting conditions, which does not concern you in the CR1.

Edited September 11, 2008 by Jomo's girl

[lucyrich 20]

There are two separate requirements (actually, there are many others, but I'll only talk about two).

* On the day you file, you must have been married to and living in valid marital union with a US Citizen spouse for three full years.

* On the day you file, you must have been living in the US with LPR status (green card) for three years less 90 days.

If you entered on a K visa and then adjusted status, you were probably living with your US Citizen spouse for six months or more before gaining LPR status. So you'd more than meet the "Three years married to and living with a US Citizen" before you meet the "Three years less 90 days with LPR status".

But in our case, we got a CR-1 visa. A CR-1 visa grants LPR status on the day of entry into the US. I was living in the US the entire time, and Lucy was living abroad until entry. You can see our timeline in the signature below. At the end of October, 2007, she met the "three years less 90 days as an LPR" test. She also met the "three years married to a US Citizen test". But because we didn't start living together until the day she got her green card, she didn't meet the "three years married to and living in valid marital union with a US Citizen".

Actually, we never were able to get a 100% reliable definition of what was meant by that phrase "and living in valid marital union with". One could argue that even though we were living in separate countries in separate households, our marriage was a valid marital union -- after all, the USCIS and DoS recognized it as such, or they wouldn't have issued the visa. But after reading a bunch of court interpretations and decisions, we couldn't come up with any unambiguous reference which proved she would be eligible, and we did come up with some references that hinted she might not be. So we took the safe route and waited until we had three full years (plus one day) living together under the same roof in the same house in the US, so that nobody could ever argue that we hadn't met that point.

[lucyrich 20]

For reference, here is the thread where we first discussed this issue as it applies to the CR-1 situation, where the couple has been married for awhile, but living in separate countries until gaining LPR status.

In that thread, you can look up the thought process, the arguments pro and con, and the references. I'm still not 100% sure of what's legally possible, but we're very comfortable with our decision to wait three full years.

I'll note that many of the court cases where they really adjudicate the issues are "administrative denaturalization" cases. That's where they have granted someone US Citizenship, but then later on, they try to take it away, saying they made a mistake and the person was never really eligible in the first place. I guess that may be because most people who receive an unfavorable decision during the normal naturalization process would just re-file when eligible, but if you're faced with administrative denaturalization, you may have no choice but to fight it in court as far as you can. That's just too much of a nightmare to even contemplate -- we wanted to stay far away from becoming a test case.

[moonhunt 1]

2) My close friend also filed 3 years minus 90 days. However when he went to the interview, they told him he filed too early. I was stunned to hear that...especially when they let him do the fingerprinting and had him wait for the interview before dropping the bomb. I never pressed him for info but I am thinking he did something like 3 years minus 91 days.

Did your freind file N400 based on marriage to US Citizen, who is same person when he/she got permanent residency?

I accidently sent my application to USCIS 2~3 days earlier than 90 days rule, but any way, postal delivery and USCIS processing takes time, so priority date is within 90 days.

So I think it is safe.

Let me see what happened next week. ^^

But USCIS assume that 90 days will be take for fingerprint and other internal processing before first interview.

Usually interview officer doesn't look at the case file until first interview date.

So make sure that priority date is fall within 90 days from 3/5 year anniversary date.

Anniversary date can be found from Permanent Resident card with "resident since".

In order to qualify for 3 years to apply naturalization, you should receive permanent residency though marriage, and you have to keep the marriage with same person for whole 3 year period until interview (and probably oath date?).

[vylex 0]

Thanks for the clarification and link to the other posts lucyrich! You spelled it out more easily than the Naturalization guide! Come to think of it, if they left out that excerpt, I (nor my friend) would have been confused.

I also fall under the conservative category of waiting the full 3 years (and then some) prior to filing. I don't want to have to go through the process twice like my friend did. It was such a PITA. Luckily for him everything went quickly the second time around (election year anyone?). Also as Jomo's girl has pointed out my wife should have her 10 year GC by then and it's not critical for us to file early so we will wait it out.

Did your freind file N400 based on marriage to US Citizen, who is same person when he/she got permanent residency?

Yep. My friend did. I think he fell into the condition that lucyrich posted...

But because we didn't start living together until the day she got her green card, she didn't meet the "three years married to and living in valid marital union with a US Citizen".

I am starting to think my cousin was lucky and they let it slide (unless she was a K-type and got into the country prior to adjusting her status and becoming a LPR). I'll have to ring her and confirm.

I accidently sent my application to USCIS 2~3 days earlier than 90 days rule, but any way, postal delivery and USCIS processing takes time, so priority date is within 90 days.

So I think it is safe.

Let me see what happened next week. ^^

I think the bigger concern is the date you put on that application and not necessarily the postal system. If they do the math on the date you signed that form, they might give you a hard time (I hope not).

Was your situation K or IR/CR?

[NickD 202]

My wife was in no rush to gain her US Citizenship, the gains are minimal over the ten year card, she was here for the 2004 election learning how the winner take all states can sway the election where those that voted for the other candidate, their votes didn't count period. Furthermore, she did vote in last Tuesday primary election, given the choice of which of the four parties she could chose, but was told she can then only vote for candidates in that party, you cannot cross vote if you feel a member of another party is more favorable. To top that off, only the incumbents were listed with no opposition, so either voting for them or not. Asked why she even took the trouble to vote.

Other negative news is that while paying a bundle on FICA taxes, she may not even get any benefits, does that also include disability?

The major factor in us applying for USC, was the USCIS itself, if they would have sent her, her ten year card within the 90 days they have suggested to keep her card current, more than likely wouldn't have applied for USC. The difficulty was in dealing with the USCIS, their consistent lies on processing dates, losing applications, our senator is helpless due to these erroneous processing dates, and that her employer was giving her a difficult time about not having a current valid green card and she was refused renewal of her driver's license. That was plenty of motivation to apply for USC as soon as she was eligible, namely to break ties with the USCIS. Plus the freedom to go places without carrying that green card with her.

Ha, didn't help her to chat with my sister that works for the feds, 14 paid holiday, two weeks sick leave, four weeks vacation, excellent medical coverage, good paycheck, and early retirement that pays far more than SS. So now she is looking for a federal job.

Perhaps if the USCIS didn't cause us so much hardships, would have been no rush to gain USC. Can see why others want that certificate as well, it means you are done with them.

But as lucyrich stated in a very elegant manner, want to make sure it is done by the book, if you can figure out what the book is saying.

Hey lucyrich, just heard on the news the Hugo is either limiting or blocking flights from the USA because George made some comments his airports are unsafe? Was just a very brief message that almost woke me up, have to find out more details on this.