QUESTION ABOUT N-400

[terrrdy 0]

Can somebody help me please? I'm a little confused about the eligibility requirement regarding length of marriage with my US citizen spouse vs. the length of time we actually "lived together". I am planning to file for N-400 90 days before my third year here in the US so that is around first week of February. I became an LPR on 5/3/07. We got married in the Philippines in 3/3/03 so we've actually been married for almost 7 years. He left the Philippines in 2004 but he would visit me and our son once a year after that. Having said that, if I file my application on February, would it get rejected since I should have been living with him for the past 3 years? Should I wait till May 2010 then? And does this statement "Have been married to and living with that same U.S. citizen for the past 3 years mean that all those 3 years have been spent here in the US? I am not really sure if I can file it 90 days before May (3rd year) or wait till May? Please tell me what you think. Thanks in advance.

[lucyrich 19]

We were in a similar situation. Here's a thread that's many years old now, but it has cites of the relevant laws and regulations.

http://www.visajourney.com/forums/index.ph...c=64249&hl=

Your situation isn't quite the same as ours was, because you have lots of time living together abroad. But I'll point out that the three years living together requirement in INA 319.1 says "during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse". So you can't use time spent living together long ago to count toward the three years living together requirement.

As to whether the time must be spent in the US, according to the USCIS interpretations of 319.1 (go to the uscis page, look up laws and regulations, click on interpretations, and go to 319.1)

"It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period."

"The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse."

There are some other paragraphs in that interpretation that might tend to argue that your situation would be approvable, though. And I'd say that spending two years and nine months living together in the US constitutions a "substantial portion" of the three year period. But what I say doesn't matter.

You can see our timeline below. We decided it was safer to wait until we had a full three years living together inside the US, so that it was absolutely clear we were eligible. After we filed and were approved, another VJ member posted that they were in our situation, where they had been married for over three years, but only started living together in the US when the alien entered the US on a CR-1 visa. They tried filing 90 days before the three years, and were denied because they hadn't met the "three years living together in valid marital union" requirement on the date they mailed their application in. So they started over with a new application.

The officer at our interview indicated that we filed as soon as possible. If we had applied 90 days earlier, she would have denied it. Maybe we could have appealed the denial, but the appeal would have been expensive and time consuming.

I'm still not 100% sure. My best guess is that, if you had a really good lawyer who could argue well on your behalf, and if you were willing to go through a bunch of court appeals, you could stand a good chance of eventually getting the case approved. But you'd spend a lot less money and get your naturalization much quicker by simply waiting the extra 90 days before filing.

[terrrdy 0]

We were in a similar situation. Here's a thread that's many years old now, but it has cites of the relevant laws and regulations.

http://www.visajourney.com/forums/index.ph...c=64249&hl=

Your situation isn't quite the same as ours was, because you have lots of time living together abroad. But I'll point out that the three years living together requirement in INA 319.1 says "during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse". So you can't use time spent living together long ago to count toward the three years living together requirement.

As to whether the time must be spent in the US, according to the USCIS interpretations of 319.1 (go to the uscis page, look up laws and regulations, click on interpretations, and go to 319.1)

"It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period."

"The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse."

There are some other paragraphs in that interpretation that might tend to argue that your situation would be approvable, though. And I'd say that spending two years and nine months living together in the US constitutions a "substantial portion" of the three year period. But what I say doesn't matter.

You can see our timeline below. We decided it was safer to wait until we had a full three years living together inside the US, so that it was absolutely clear we were eligible. After we filed and were approved, another VJ member posted that they were in our situation, where they had been married for over three years, but only started living together in the US when the alien entered the US on a CR-1 visa. They tried filing 90 days before the three years, and were denied because they hadn't met the "three years living together in valid marital union" requirement on the date they mailed their application in. So they started over with a new application.

The officer at our interview indicated that we filed as soon as possible. If we had applied 90 days earlier, she would have denied it. Maybe we could have appealed the denial, but the appeal would have been expensive and time consuming.

I'm still not 100% sure. My best guess is that, if you had a really good lawyer who could argue well on your behalf, and if you were willing to go through a bunch of court appeals, you could stand a good chance of eventually getting the case approved. But you'd spend a lot less money and get your naturalization much quicker by simply waiting the extra 90 days before filing.

Thanks Lucyrich. That was really helpful. I guess I really have to wait till May just to be on the safe side.