My wife's N400 denied because we filed 88 days early (corrected version) (Merged)

[Scandi 4,171]

1 hour ago, Wouter said:

Hello, I am confused and frustrated,

She was just notified that her N400 application was denied because "at the time of filing Form N-400, August 18, 2024, you have been living in marital union with your U.S. citizen spouse for 2 years 9 months and 5 days".

We have been married since 02-02-2020. We applied for a CR1 visa shortly after and like so many my wife stayed in her home country while I waited in the US.

When the CR1 was finally approved and issued she entered the US on 11-13-2021 which was also the date on her temporary 2y green card. We filed for removal of conditions before 11-13-2023 and this was approved and she received her permanent 10y green card without problems. 

On 08-18-2024 we filed her N400 application for US citizenship, which is 88 days ahead of the 3 year mark of my wife being here with me, under the assumption the 90 day early filing rule would allow this.

She just had her interview on 12-11-2024 and was denied as I mentioned above. Not because her residence in the US at time of filing was less than 3 years but because she hasn't been living in "marital union" with me for 3 years at time of filing! Don't those two things go together for every CR1 situation? How can you be allowed to file 90 days early but then get denied because you didn't live together with your spouse for the full 3 years at time of filing?

It does say that you can request a hearing to overcome the grounds of this denial, but we would probably need a lawyer to help us with that and I have my doubts this would be successful. Should we just file the N400 again now that it definitely has been more than 3 years?

 

Has she been living elsewhere for some time during those 3 years? We have seen other people getting denied just for being on vacation in their home country for a few months before filing their N-400.

[OldUser 6,920]

6 minutes ago, Scandi said:

 

Has she been living elsewhere for some time during those 3 years? We have seen other people getting denied just for being on vacation in their home country for a few months before filing their N-400.

This was extensively discussed here:

 

 

The gist of it is... While USCIS allows early filing (90 day window) based on permanent residence requirement, the marital union requirement does not have the same exception. E.g. if you file early based on residence, but you aren't married for 3+ years living together, the case is denied.

[Ontarkie 14,286]

~~Duplicate thread merged. Please do not start more than one thread on the same or similar topic.~~

[top_secret 2,453]

I always found this three years of marital union vs 90 day early filing issue to be a very grey area.  This is not the first case I have heard of being denied for early filing due to not having three years of marital union, even though they were apparently within the 90 day early filing window.   I agree that I cannot find anywhere that is says the 90 day early filing window also applies to the marital union requirement.  However, it seems that in the vast majority of cases where it might be an issue, they are still approved normally and it is not an issue.  It seems that a small handful of outwardly identical cases get denied on that basis.  When I looked at it I could not find a solid argument to dispute the denials other than, most other identical cases still get approved?  We were more or less in the same situation and debated waiting for the full three years because of it, but having identified numerous other cases where it was not a problem we still opted for 90 (89) day early filing and the marital union issue never came up.   Not sure what to say for the original poster.  It seems that filing within the 90 day early window is taking a chance due to inconsistency on the part of USCIS.   Most people who did it were fine.  A handful did and were denied.  But I can't find a solid legal argument to dispute the denials.

[Wouter 143]

3 hours ago, Scandi said:

 

Has she been living elsewhere for some time during those 3 years? We have seen other people getting denied just for being on vacation in their home country for a few months before filing their N-400.

Hi, no she has been here with me for all this time. However, the issue doesn't seem to be residence in the US but the reasons for denial is: not enough time living in 'marital union'. We have been married for over five years but didn't physically live together until the immigrated on her CR1 visa, as so many CR1 couples have.

Your question actually highlights that there tends to be much more attention on this residence requirement but I have not read anything before about the marital union requirement and that people get denied on that (but that is my mistake because it is clearly part of the requirements).

So let this be a word of caution to others that come through the CR1 path.

Fortunately it's not a major problem, she still has her PR status. We just have to file the same application again and pay again and then it should be fine.

 

W

[nelmagriffin 150]

REFERENCE: Chapter 3 - Spouses of U.S. Citizens Residing in the United States | USCIS

 

Chapter 3 - Spouses of U.S. Citizens Residing in the United States

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A. General Eligibility for Spouses Residing in the United States

The spouse of a U.S. citizen who resides in the United States may be eligible for naturalization on the basis of his or her marriage.^[1] The spouse must have continuously resided in the United States after becoming a lawful permanent resident (LPR) for at least 3 years immediately preceding the date of filing the naturalization application and must have lived in marital union with his or her citizen spouse for at least those 3 years.

The spouse must establish that he or she meets the following criteria in order to qualify: 

• Age 18 or older at the time of filing.
• LPR at the time of filing the naturalization application.
• Continue to be the spouse of the U.S. citizen up until the time the applicant takes the Oath of Allegiance.
• Living in marital union with the citizen spouse for at least 3 years preceding the time of filing the naturalization application (the citizen spouse must have been a U.S. citizen for those 3 years).
• Continuous residence in the United States as an LPR for at least 3 years immediately preceding the date of filing the application and up to the time of naturalization.
• Physically present in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the date of filing the application.
• Living within the state or USCIS district with jurisdiction over the applicant’s place of residence for at least 3 months prior to the date of filing.
• Demonstrate an understanding of the English language, including an ability to read, write, and speak words in ordinary usage. 
• Demonstrate a knowledge and understanding of the fundamentals of the history and principles and form of government of the United States (civics).
• Demonstrate good moral character for at least 3 years prior to filing the application until the time of naturalization.
• Attachment to the principles of the U.S. Constitution and well-disposed to the good order and happiness of the United States during all relevant periods under the law.

The spouse of a U.S. citizen residing in the United States may also naturalize under the general naturalization provisions for applicants who have been LPRs for at least 5 years.^[2] In addition, in some instances the spouse of a member of the U.S. armed forces applying pursuant to INA 319(a) or INA 316(a) may be eligible for any naturalization proceeding abroad, to include interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.^[3]

B. Living in Marital Union for Spouses Residing in the United States

The spouse of a U.S. citizen residing in the United States must have been living in marital union with his or her citizen spouse for at least 3 years immediately preceding the time of filing the naturalization application. This provision requires that the spouse live in marital union with the citizen spouse during the entire period of 3 years before filing.^[4]

However, the statute does not require living in marital union for the period between the date of filing the application and the date of naturalization (date applicant takes the Oath of Allegiance). The corresponding regulation conflicts with the statute in stating that the spouse must have been living in marital union with his or her citizen spouse for at least 3 years at the time of the examination on the application, and not at the time of filing.

USCIS follows the language of the statute in requiring living in marital union only up until the time of filing.^[5] Accordingly, only the existence of a legally valid marriage is required from the date of filing the application until the time of the applicant’s naturalization.^[6]

A person who was a spouse subjected to battery or extreme cruelty by their citizen spouse is exempt from the marital union requirement.^[7]

C. 3 Years of Continuous Residence

The spouse of a U.S. citizen residing in the United States must have continuously resided in the United States as an LPR for at least 3 years immediately preceding the date of the filing the application and up to the time of the Oath of Allegiance. Continuous residence involves the applicant maintaining a permanent dwelling place in the United States for the required period of time. The residence is the applicant’s actual dwelling place regardless of his or her intentions to claim it as his or her residence.^[8]

D. 18 Months of Physical Presence

The spouse must have been physically present in the United States for at least 18 months (548 days) out of the 3 years immediately preceding the date of filing the application.^[9] Physical presence refers to the number of days the applicant must physically be present in the United States during the statutory period up to the date of filing for naturalization.^[10]

E. 90-Day Early Filing Provision (INA 334)

The spouse of a U.S. citizen filing for naturalization on the basis of his or her marriage may file the naturalization application up to 90 days before the date he or she would first meet the required 3-year period of continuous residence.^[11] Although an applicant may file early and may be interviewed during that period, the applicant is not eligible for naturalization until he or she has satisfied the required 3-year period of residence. All other requirements for naturalization must be met at the time of filing.

USCIS calculates the early filing period by counting back 90 days from the day before the applicant would have first satisfied the continuous residence requirement for naturalization. For example, if the day the applicant would satisfy the 3-year continuous residence requirement for the first time is on June 10, 2010, USCIS will begin to calculate the 90-day early filing period from June 9, 2010. 

In cases where an applicant has filed early and the required 3-month period of residence in a state or service district falls within the required 3-year period of continuous residence, jurisdiction is based on the 3-month period immediately preceding the examination on the application (interview).^[12]

F. Eligibility for Persons Subjected to Battery or Extreme Cruelty

1. General Eligibility for Persons Subjected to Battery or Extreme Cruelty

On October 28, 2000, Congress expanded the provision regarding naturalization based on marriage to a U.S. citizen for persons who reside in the United States. The amendments added that any person who obtained LPR status as the spouse, former spouse, or intended spouse^[13] of a U.S. citizen who subjected him or her to battery or extreme cruelty may naturalize under this provision.^[14]

Specifically, the person must have obtained LPR status based on:

• An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning spouse of an abusive U.S. citizen;
• An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning spouse of an abusive LPR, if the abusive spouse naturalizes after the petition has been approved;^[15] or
• Special rule cancellation of removal for battered spouses and children in cases where the applicant was the spouse, or intended spouse of a U.S. citizen, who subjected him or her to battery or extreme cruelty.^[16]

A person is also eligible for naturalization under the spousal naturalization provisions if he or she had the conditions on his or her residence removed based on:

• An approved battery or extreme cruelty waiver of the joint filing requirement for Petition to Remove Conditions on Residence (Form I-751), for a conditional permanent resident, if the marriage was entered into in good faith and the spouse was subjected to battery or extreme cruelty by the petitioning citizen or LPR spouse.^[17]

2. Exception to Marital Union and U.S. Citizenship Requirements for Spouses

A person subjected to battery or extreme cruelty by his or her U.S. citizen spouse is exempt from the following naturalization requirements:^[18]

• Married to the U.S. citizen spouse at the time of filing the naturalization application;
• Living in marital union with the citizen spouse for at least 3 years at the time of filing the naturalization application; and
• Applicant’s spouse has U.S. citizenship from the time of filing until the time the applicant takes the Oath of Allegiance.^[19]

The spouse must meet all other eligibility requirements for naturalization.^[20]

G. Application and Evidence

1. Application for Naturalization (Form N-400)

To apply for naturalization, the applicant must submit an Application for Naturalization (Form N-400) in accordance with the form instructions and with the required fee.^[21] The applicant should check the appropriate eligibility option on the naturalization application to indicate that he or she is applying on the basis of marriage to a U.S. citizen.

2. Evidence of Spouse’s United States Citizenship

Under this provision, the burden is on the applicant to establish that he or she is married and living in marital union with a U.S. citizen.^[22] A spouse of a U.S. citizen must submit with the application evidence to establish the U.S. citizenship of his or her spouse.^[23]

Evidence of U.S. citizenship may include:

• Certificate of birth in the United States;
• Department of State Consular Report of Birth Abroad (FS-240);
• Certificate of Citizenship;
• Certificate of Naturalization; and
• Valid and unexpired United States Passport.

If an official civil record cannot be produced, secondary evidence may be accepted on a case-by-case basis. An officer has the right to request an original record if there is doubt as to the authenticity of the record.^[24]