When can I apply for N-400?

[zorzor 7]

Hello,

I received my Green Card through CR-1 visa (marriage to a US citizen) on March 28, 2021. I visited my wife and her family for about a month and left on May 2nd, 2021. She then went to visit me and the next time I flew into the U.S. was February 22, 2022 (meaning I wasn't in the U.S. for 296 days) and ever since then, I've been here, so for about a year and a half. 

 

I am confused on when I'm able to apply for citizenship (N-400). Is it 3 years after the date from which I received my Green Card, (received 3.28.21 so 3 years will be on 3.28.24, minus 90 days early filing), or because the first year after I got my Green Card I was absent from the U.S. for 296 days I'm not able to start applying at the end of this year, I would have to wait another year? 

 

I'm confused because I see some people say that I would need to be in the U.S. for 183 days/year for them to consider it one year, and then I see others say that I would need to live in the U.S. for consecutive 1.5 years during a duration of 3 years from the day I received my Green Card. 

 

So, overall my timeline goes like this:

3.28.2021 - First day in the U.S. and received Green Card

5.2.2021 - Left the U.S. 

2.22.2022 - Returned to the U.S. (after absence of 296 days)

7.16.2023 - Still in the U.S. 

 

Any help would be appreciated, 

Thank you.

[Boiler 45,292]

The safest option would be to use the date you took up full time residency.

[Redro 4,611]

36 minutes ago, zorzor said:

Hello,

I received my Green Card through CR-1 visa (marriage to a US citizen) on March 28, 2021. I visited my wife and her family for about a month and left on May 2nd, 2021. She then went to visit me and the next time I flew into the U.S. was February 22, 2022 (meaning I wasn't in the U.S. for 296 days) and ever since then, I've been here, so for about a year and a half. 

 

I am confused on when I'm able to apply for citizenship (N-400). Is it 3 years after the date from which I received my Green Card, (received 3.28.21 so 3 years will be on 3.28.24, minus 90 days early filing), or because the first year after I got my Green Card I was absent from the U.S. for 296 days I'm not able to start applying at the end of this year, I would have to wait another year? 

 

I'm confused because I see some people say that I would need to be in the U.S. for 183 days/year for them to consider it one year, and then I see others say that I would need to live in the U.S. for consecutive 1.5 years during a duration of 3 years from the day I received my Green Card. 

 

So, overall my timeline goes like this:

3.28.2021 - First day in the U.S. and received Green Card

5.2.2021 - Left the U.S. 

2.22.2022 - Returned to the U.S. (after absence of 296 days)

7.16.2023 - Still in the U.S. 

 

Any help would be appreciated, 

Thank you.

Was your wife overseas with you or were you living in separate homes? 
3 year rule requires 3 years of living together. 
 

Edited July 18, 2023 by Redro

[zorzor 7]

1 hour ago, Boiler said:

The safest option would be to use the date you took up full time residency.

So when would that be on your opinion?

[zorzor 7]

1 hour ago, Redro said:

Was your wife overseas with you or were you living in separate homes? 
3 year rule requires 3 years of living together. 
 

We were living together for a half of that time, but don't have proof because it was with my family in Ukraine.

[Mike E 11,739]

3 hours ago, zorzor said:

February 22, 2022 (meaning I wasn't in the U.S. for 296 days) and ever since then, I've been here, so for about a year and a half. 

 

I am confused on when I'm able to apply for citizenship (N-400

I advise Feb 23, 2025, so that your absence is less likely to be an issue.

[zorzor 7]

13 hours ago, Mike E said:

I advise Feb 23, 2025, so that your absence is less likely to be an issue.

Does the  4 year and 1 day rule (2 years and 1 day rule for me) apply to me? 

[Mike E 11,739]

2 minutes ago, zorzor said:

Does the  4 year and 1 day rule (2 years and 1 day rule for me) apply to me? 

Maybe. What is your evidence that you did not break continuous residence? 

[zorzor 7]

1 minute ago, Mike E said:

Maybe. What is your evidence that you did not break continuous residence? 

I don't have any proofs, but I was treating my back problems (I did not pay any bills in the USA, rent, did not work, etc.).

My wife was living with me and my family during that time

[Mike E 11,739]

14 minutes ago, zorzor said:

I don't have any proofs, but I was treating my back problems (I did not pay any bills in the USA, rent, did not work, etc.).

My wife was living with me and my family during that time

IMHO, you have no case for the 2 years, 1 day rule.  You have a case for the 3 years, less 180 days rule (I prefer 3 years less, 179 days as the lesser evil due to how badly N-400 words this issue).
 

If you did not file tax returns with the IRS during your absence, address that now.

Edited July 18, 2023 by Mike E

[zorzor 7]

28 minutes ago, Mike E said:

IMHO, you have no case for the 2 years, 1 day rule.  You have a case for the 3 years, less 180 days rule (I prefer 3 years less, 179 days as the lesser evil due to how badly N-400 words this issue).
 

If you did not file tax returns with the IRS during your absence, address that now.

I didn't file tax returns for that first year that I was here because I was simply visiting, not making any money. My wife filed taxes for herself but she made a mistake and filed as single, instead of MFS, the tax amendment is being processed right now. 

 

And I'm sorry, I didn't completely understand what you mean by 3 years, less 180 days rule. Could you clarify a little bit more? 

[Redro 4,611]

11 minutes ago, zorzor said:

I didn't file tax returns for that first year that I was here because I was simply visiting, not making any money. My wife filed taxes for herself but she made a mistake and filed as single, instead of MFS, the tax amendment is being processed right now. 

 

And I'm sorry, I didn't completely understand what you mean by 3 years, less 180 days rule. Could you clarify a little bit more? 

As soon as you entered the US on the immigrant visa you were a resident- you were not “visiting”. You and your wife should have filed MFJ- and if your were working in your home country you should have filed 2555. 

[zorzor 7]

1 minute ago, Redro said:

As soon as you entered the US on the immigrant visa you were a resident- you were not “visiting”. You and your wife should have filed MFJ- and if your were working in your home country you should have filed 2555. 

Got it, thanks. We were young when filing taxes. Only my wife was here and filing them, she made a mistake, however she filed an amendment, so that is being processed right now. 

Regarding 2555, I wasn't working in my home country either. I was a student and haven't worked anywhere yet, so I don't have any tax documentation for 2021.

 

[Redro 4,611]

10 minutes ago, zorzor said:

Got it, thanks. We were young when filing taxes. Only my wife was here and filing them, she made a mistake, however she filed an amendment, so that is being processed right now. 

Regarding 2555, I wasn't working in my home country either. I was a student and haven't worked anywhere yet, so I don't have any tax documentation for 2021.

 

Even if you weren’t working- filing taxes with your wife is good practice as it indicates you maintained residence in the US. You also have to show you filed taxes as part of your N400 application or state why you didn’t file taxes… stating “I was visiting the U.S. not living there” shows you shouldn’t count any of your time in 2021 as part of time towards N400 app. 
Do you have 2 year or 10 year green card? 

[Mike E 11,739]

44 minutes ago, zorzor said:

I didn't file tax returns for that first year that I was here because I was simply visiting, not making any money.

You were an LPR, not a visitor. You became an LPR when you entered on your CR-1.

 

You need to file a tax return.

 

44 minutes ago, zorzor said:

My wife filed taxes for herself but she made a mistake and filed as single, instead of MFS, the tax amendment is being processed right now.

Should re-amended to MFJ. 
 

This is the weakest case for a 3 year rule N-400 I have ever seen.

 

44 minutes ago, zorzor said:

And I'm sorry, I didn't completely understand what you mean by 3 years, less 180 days rule. Could you clarify a little bit more? 

You returned to the U.S. Feb 22, 2022.

 

180 days before Feb 22, 2022 is August 26, 2021. So you legally you could apply August 26, 2024, without a waiver of the assumption of breaking continuous residency,   because August 26, 2021  to Feb 2022, 2022 is   an absence of just 180 days prior to Feb 22, 2022.
 

Or  better yet file August 27, 2024, which yields an absence of just 179 days prior to Feb 22, 2022.