N400 Case Denied for 3 years marital union after evidence submitted

[Kai G. Llewellyn 832]

1 hour ago, CadeMcNown said:

Thank you for pointing this out. I made it clear in my affidavit that I went home between trips due to work obligations. It would seem that according to the law this was a bad ruling then:

 

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

Oh, yeah if you had to go back for occupational reasons for two months then yeah, they definitely erred by the looks of it especially given that you testified that it was for work. Sounds like you got a crummy case officer that was looking for a reason to deny. 😕 You could appeal, but it may take longer and cost more than just refiling in the long run.

[Pinkrlion 2,704]

Its three years from the date Green Card was issued, not married.  Living together is one condition of filing.  It is just understood because majority of those who file are living with their spouse in the US and have completed ROC.  

Edited April 7, 2022 by Pinkrlion

[carmel34 3,609]

My husband is preparing to submit his N-400 next month, 90 days before his 3-year green card date anniversary.  However, this thread and the denial of the N-400 for the OP's spouse have caused us to re-think this timing.  If my husband files on May 20th, 2022 as planned, 3-years prior to that date (May 20th, 2019) he was living in Brazil, working at his job and waiting for his CR-1 visa interview which was in June, 2019, and I was living and working in the US.  Based on the officer's logic in OP's denial, we need to include evidence that we were "living together in marital union" on May 20th, 2019.  We do not have such evidence because he did not have his CR-1 visa yet.  We were not living together until he arrived in the US with his approved CR-1 visa on August 19, 2019.  I just checked the N-400 instructions and saw the requirement below, in bold:

 

A. Spouse of a U.S. Citizen. Bring the following items to your interview if you are applying for naturalization on the basis of your marriage to a U.S. citizen: (1) Evidence that your spouse has been a U.S. citizen for at least 3 years at the time you file your Form N-400. Such evidence may include: a birth certificate (if your spouse never lost U.S. citizenship since birth), Certificate of Naturalization, Certificate of Citizenship, or Form FS-240 Report of Birth Abroad of a Citizen of the United States of America; (2) Evidence of the termination of all your prior marriages; and (3) Evidence that you and your spouse have lived in marital union for at least 3 years at the time you file your Form N-400. Such evidence may include: (a) Joint bank and credit card statements; (b) Leases or mortgages; (c) Birth certificates of children; (d) Insurance policies; and (e) Internal Revenue Service (IRS)-certified copies of the income tax forms that you and your spouse filed for the past 3 years (or an IRS tax return transcript for the last 3 years).

 

I will now advise my husband not to file the N-400 until August 20, 2022, to avoid the potential for a denial.  He is also waiting for the ROC interview to be scheduled, like many others.  OP, you're not alone in overlooking this requirement, so thank you for sharing your experience.  There are many who filed the N-400 based on the 3 years minus 90 days from green card date rule, who were approved without issues, despite the fact that the couple was not "living together in marital union" three years before the filing date.  I checked some VJ timelines to confirm this.  So maybe some officers check this carefully, and others don't.  Maybe your trips abroad triggered a higher degree of scrutiny in your case, who knows?  I'm sure you'll be fine with the second N-400 application.  Good luck!

[CadeMcNown 39]

5 minutes ago, carmel34 said:

My husband is preparing to submit his N-400 next month, 90 days before his 3-year green card date anniversary.  However, this thread and the denial of the N-400 for the OP's spouse have caused us to re-think this timing.  If my husband files on May 20th, 2022 as planned, 3-years prior to that date (May 20th, 2019) he was living in Brazil, working at his job and waiting for his CR-1 visa interview which was in June, 2019, and I was living and working in the US.  Based on the officer's logic in OP's denial, we need to include evidence that we were "living together in marital union" on May 20th, 2019.  We do not have such evidence because he did not have his CR-1 visa yet.  We were not living together until he arrived in the US with his approved CR-1 visa on August 19, 2019.  I just checked the N-400 instructions and saw the requirement below, in bold:

 

A. Spouse of a U.S. Citizen. Bring the following items to your interview if you are applying for naturalization on the basis of your marriage to a U.S. citizen: (1) Evidence that your spouse has been a U.S. citizen for at least 3 years at the time you file your Form N-400. Such evidence may include: a birth certificate (if your spouse never lost U.S. citizenship since birth), Certificate of Naturalization, Certificate of Citizenship, or Form FS-240 Report of Birth Abroad of a Citizen of the United States of America; (2) Evidence of the termination of all your prior marriages; and (3) Evidence that you and your spouse have lived in marital union for at least 3 years at the time you file your Form N-400. Such evidence may include: (a) Joint bank and credit card statements; (b) Leases or mortgages; (c) Birth certificates of children; (d) Insurance policies; and (e) Internal Revenue Service (IRS)-certified copies of the income tax forms that you and your spouse filed for the past 3 years (or an IRS tax return transcript for the last 3 years).

 

I will now advise my husband not to file the N-400 until August 20, 2022, to avoid the potential for a denial.  He is also waiting for the ROC interview to be scheduled, like many others.  OP, you're not alone in overlooking this requirement, so thank you for sharing your experience.  There are many who filed the N-400 based on the 3 years minus 90 days from green card date rule, who were approved without issues, despite the fact that the couple was not "living together in marital union" three years before the filing date.  I checked some VJ timelines to confirm this.  So maybe some officers check this carefully, and others don't.  Maybe your trips abroad triggered a higher degree of scrutiny in your case, who knows?  I'm sure you'll be fine with the second N-400 application.  Good luck!

I would definitely recommend waiting the full three years to avoid any risk of this! I'm glad this can help you. We have received so much help from here that even if our case is unfortunate it can help as a warning for others.

Edited April 7, 2022 by CadeMcNown

[Mike E 11,739]

Good plan.  

[Family 3,988]

If the fee for N-336 is ok for you , then I would challenge the narrow, ambiguous and capricious definition of the Officer’s interpretation of “ marital union “ . There is nothing in Regs that says physically sharing a room( residence) is a condition for marital union. 
She clearly met the physical presence test and marital union does not require the bedroom test ( physical presence in the bedroom ) . Occasional trips abroad DO NOT BREAK physical presence , and MARITAL UNION should not be at the discretion of interpretations most convenient to USCIS. 
 

[Family 3,988]

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-319/section-319.1
 

[carmel34 3,609]

13 minutes ago, Family said:

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-319/section-319.1
 

"Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application..."

 

This requirement sounds like N-400 applicants have to wait and file 3 or more years after living together, not only married but living in the same household.  90 days before the 3-year green card anniversary is too early for many of us in this situation.  So we will wait to be safe.  The additional 3 months won't make much difference, with the long wait after filing in most locations.

Edited April 7, 2022 by carmel34

[Family 3,988]

16 minutes ago, carmel34 said:

This requirement sounds like N-400 applicants have to wait and file 3 or more years after living together, not only married but living in the same household.  90 days before the 3-year green card anniversary is too early for many of us in this situation.  So we will wait to be safe.  The additional 3 months won't make much difference, with the long wait after filing in most locations.

I agree with you on the practical consideration, and I must confess that I have always encouraged CR s with delayed I-751’s to file 3 years from date of LPR status ( not marriage and marital union)…because at that point it was bulletproof. Glad OP posted and you are well prepared. Good luck 

[Vegas i-751 66]

This thread has caused me anxiety. I came on a K1 visa and done AOS. My conditional green card got approved on September 13th 2019 and I got approved last month for ROC.
 

I’m under impression I’m eligible to apply for N-400 around June 14 (or there abouts) based this year per early 90 day filing and being in 3 year marriage. Longest i have been out of US since being here is 3-4 weeks. I hope I’ll be fine 

Edited April 7, 2022 by Vegas i-751

[randy32 165]

This is messed up.

I normally usually would have said file about a week inside the 90 window.

 

Now I think especially for those who travel outside the country, we have to count all those days carefully.

Messed up.

[Letspaintcookies 2,308]

5 hours ago, Pinkrlion said:

Its three years from the date Green Card was issued, not married.  Living together is one condition of filing.  It is just understood because majority of those who file are living with their spouse in the US and have completed ROC.  

Spouse came with a CR-1 visa. Date on the Greencard is date of her entry.

[Tanish 197]

4 hours ago, carmel34 said:

"Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application..."

 

This requirement sounds like N-400 applicants have to wait and file 3 or more years after living together, not only married but living in the same household.  90 days before the 3-year green card anniversary is too early for many of us in this situation.  So we will wait to be safe.  The additional 3 months won't make much difference, with the long wait after filing in most locations.

Look at my timeline. We didn't wait full 3 years to file for N-400. We also didn't apply right on the day I was eligible as well. We waited a few days to be safe.

As long as you have the criteria met, you should be fine.

[Mike E 11,739]

1 hour ago, Tanish said:

Look at my timeline. We didn't wait full 3 years to file for N-400. We also didn't apply right on the day I was eligible as well. We waited a few days to be safe.

As long as you have the criteria met, you should be fine.

I agree OP’s wife should have been allowed to naturalize.  However she wasn’t.  Notwithstanding successful examples like yours, the risk of filing less than 3 years after POE can be likened to wagering $3600 on a race horse that pays back a $300 profit if you win or costs you $3600 if you lose. Versus betting $300 on a horse that is guaranteed to win, and pays back a profit of zero dollars.  

 

So given OP’s experience, it seems prudent to wait until the 3 year anniversary of the point of entry.  Costs 90 days versus potentially costing years if the IO breaks the law.  
 

There is a safe mitigation. 94 or so  days before the anticipated POE, the petitioner travels to the beneficiary’s country and lives with the beneficiary for a week or so.  Problem solved.  

Edited April 8, 2022 by Mike E

[CadeMcNown 39]

19 minutes ago, Mike E said:

I agree OP’s wife should have been allowed to naturalize.  However she wasn’t.  Notwithstanding successful examples like yours, the risk of filing less than 3 years after POE can be likened to wagering $3600 on a race horse that pays back a $300 profit if you win or costs you $3600 if you lose. Versus betting $300 on a horse that is guaranteed to win, and pays back a profit of zero dollars.  

 

So given OP’s experience, it seems prudent to wait until the 3 year anniversary of the point of entry.  Costs 90 days versus potentially costing years if the IO breaks the law.  
 

There is a safe mitigation. 94 or so  days before the anticipated POE, the petitioner travels to the beneficiary’s country and lives with the beneficiary for a week or so.  Problem solved.  

Yeah we had no idea it was even a risk. We did 89 days actually just to be a little safe with the math. I understand many have applied like us with no issue. I think we just got a bad agent. I would definitely recommend not taking the risk unless you really are in a hurry. We are now delayed by a year trying to save a few months, not to mention the added expenses. Now the consideration is whether to contest at a hearing or apply again. We will contact a lawyer as it seems an uncommon case, and I'm sure they can tell us whether it's worth pursuing.