90 day early filing: Marital union vs continuous residence requirements

[Kastrs 723]

15 hours ago, dirk_diggler said:

I've been reading up on whether 90-day early filing applies to my case, which is a marriage to a USC.

 

There seems to be two relevant requirements:

1.  Continuous residence as a LPR for 3 years

2.  Live in marital union for 3 years

 

My understanding from reading various articles on USCIS is that the 90-day early filing applies to #1 above.  In other words, you only need to be a LPR for 3 years - 90 days before you can send your paperwork.

However, can someone shed some light on #2?  Does that mean that the USC/LPR MUST have lived together for a complete 3 years before sending the N-400?

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

Your spouse can file for citizenship (assuming you are still living in a marital union) 90 days before her 3rd anniversary of being an LPR

[dirk_diggler 107]

Thanks guys.  After re-reading the M-476 (guide to naturalization), I think my case does qualify and I will go ahead and use the 90-day early filing

[broppy 204]

12 minutes ago, dirk_diggler said:

Thanks guys.  After re-reading the M-476 (guide to naturalization), I think my case does qualify and I will go ahead and use the 90-day early filing

Great! Good luck with everything and please let us know how it goes.

[mallafri76 1,012]

On 3/27/2017 at 5:48 PM, broppy said:

If marital union strictly meant living together

Actually that's is USCIS' interpretation of INA. To USCIS, marital union means living together. 

 

That's why the N-400 asks if you have been married to and been living with the same USC spouse for the past three years.

[broppy 204]

9 minutes ago, mallafri76 said:

Actually that's is USCIS' interpretation of INA. To USCIS, marital union means living together. 

 

That's why the N-400 asks if you have been married to and been living with the same USC spouse for the past three years.

Yes, I phrased that badly. I meant that as "strictly living together under the same roof".

The question on N-400 just uses the vague term "living with" - it doesn't actually require that you be living in the same house as your spouse.

[dirk_diggler 107]

FWIW, this thread from 10 years ago discusses the same question.  Unfortunately there's no clear conclusion: 

 

[broppy 204]

Oh that's a good find! This is from one of @meauxna's posts in that thread.

 

Quote

According to 8 CFR §319.1(B)(2)(ii), any legal separation will also break the continuity of the marital union. However, informal separations are evaluated on a case-by-case basis.

It's very curious that she picked up on 8 CFR §319.1(b)(2)(ii) and found under there both (A) legal separation and (B) informal separation; but completely overlooked (C) involuntary separation which, as I'd quoted earlier in this thread, will not preclude naturalization. I even went back to the 2007 edition and (C) was there 10 years ago too (and even easier to see - in the 2016 edition I looked at originally, (B) is at the bottom of one page and (C) at the top of the next - in the older copy, (C) is right below (B) where you can't really miss it).

It's a shame she doesn't seem to be around here any more, nor at BE.

 

 

[dirk_diggler 107]

15 hours ago, broppy said:

Oh that's a good find! This is from one of @meauxna's posts in that thread.

 

It's very curious that she picked up on 8 CFR §319.1(b)(2)(ii) and found under there both (A) legal separation and (B) informal separation; but completely overlooked (C) involuntary separation which, as I'd quoted earlier in this thread, will not preclude naturalization. I even went back to the 2007 edition and (C) was there 10 years ago too (and even easier to see - in the 2016 edition I looked at originally, (B) is at the bottom of one page and (C) at the top of the next - in the older copy, (C) is right below (B) where you can't really miss it).

It's a shame she doesn't seem to be around here any more, nor at BE.

 

 

 

Nice information!  Would be really nice if USCIS had provided some clarity around this question.  One can go back and forth after looking at all the details in the statues/regulations/guides...

[dirk_diggler 107]

To follow up on my previous post, I was thinking about consulting an immigration attorney about this issue but after reading/googling into it I'm not sure even they will have a definitive answer.

[broppy 204]

1 hour ago, dirk_diggler said:

To follow up on my previous post, I was thinking about consulting an immigration attorney about this issue but after reading/googling into it I'm not sure even they will have a definitive answer.

The more I think about it, there must have been tons of people in the same situation - it seems quite likely that people immigrating on CR-1 will be living apart prior to actually getting LPR status and I'm sure a fair number of those must go on to apply for naturalization under the 90-day rule. If USCIS were routinely (or even occasionally) denying them for not having lived together for the whole three years, surely we'd be seeing a lot more mention of it here and elsewhere. I can find several cases where people have been denied for not being married for the whole three years, and cases where people have separated past the end of the three years (that seems to be settled - you still need to be living together all the way from filing to taking the oath), but nothing about temporary separation at the beginning of the three years.

I still think its safe for you to file early, but if you're concerned, it's only an extra 90 days to wait to be absolutely safe. And as @lucyrich pointed out in that other thread,

Quote

The cost of filing early and getting it wrong is potentially pretty high. A likely problem is that they would deny it, or they might delay for awhile as they figure out how to adjudicate it. That would likely negate the benefit of filing early. A much less likely, but still remotely possible, outcome is that they could approve it, and then later on, retroactively review the decision and revoke citizenship administratively. In comparison to these possibilities, the cost of waiting the extra 90 days for certain eligibility is low, at least for our own personal circumstances.

 

[milimelo 4,498]

We never had a problem with this. Filed 90 days prior and all good. Marriage was in end of October and immigrant visa activated late May the following year (lived together all the time). 

 

My N400 timeline in signature - they were much faster in 2010. 

[dirk_diggler 107]

11 hours ago, milimelo said:

We never had a problem with this. Filed 90 days prior and all good. Marriage was in end of October and immigrant visa activated late May the following year (lived together all the time). 

 

My N400 timeline in signature - they were much faster in 2010. 

Thanks for the report.  So you and your spouse only started living together when they moved to the U.S. on CR1/IR1?

[domwardbound 73]

Any update / further experience here? I had the same question about meeting the "living in marital union for at least 3 years prior to filing" requirement?

 

If your spouse started living with you when they arrived and officially got their green card, can you file your N400 90 days earlier than that 3-year anniversary, or do you need to wait?