N 400 early filing 90 days

[neal24 0]

My parents have had a GC for nearly 5 years and are planning on applying for their US Citizenship. We are totally confused whether they qualify to apply for 90-days early filing or not. One immigration attorney said yes while they called up USCIS in San Francisco office and the lady there said they have to wait 5 years.

1. They have been in the US continuously for 3 months
2. In the last 5 years they would have stayed in the US for more than 6 months each year. So, it will be over 30 months once they hit their 5 year mark.

The immigration lawyer said they can apply 89 days prior to hitting the 5 year mark. Would love your thoughts/advice.

Thanks

[pgupta 19]

you may apply for Citizenship 90 days before your 5 year mark from your Green Card date or any time after that.

[Cheezees 1,514]

Please read the instructions and other forms associated with the naturalization process at USCIS.gov/forms. It answers this and many other questions they might have. Good luck!

[neal24 0]

Thank you. Actually, we have read and re-read these forms but ended up being super confused. On top of it my parents spoke to the USCIS person today who flatly said that they cant apply until 5 year anniversary mark.

That's why I am here.

[JimmyHou 613]

You said in your original post: "In the last 5 years they would have stayed in the US for more than 6 months each year. So, it will be over 30 months once they hit their 5 year mark." I could be mistaken, but I assume that means that at the 90-day early point, they will not have been in the US for over 30 months.

My understanding, based on the law as described here: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-32314/0-0-0-32323.html is that they should be able to apply. However, I don't think it's very clear (from the USCIS Policy Manual Paragraph I have pasted below) whether the 90 days applies to Physical Presence (the issue in your parents' case) or only to Continuous Residence. For this reason, although I believe that your parents can apply 90 days early, I would, if I were in their shoes, not apply until the 5 years were up. There is a chance (I think a decent chance) that an interviewer would interpret the requirement differently and deny their application. Having said that, I remember reading about someone on this website who was in a similar situation and was approved; after some back and forth with a supervisor and an interviewer.

Once they hit the 5 year point, they will meet the physical presence requirement, but if they've been out of the country for just under 30 of the last 60 months, they may have trouble proving that they maintained continuous residence. No, this does not mean that they will be denied or that they will even necessarily have a difficult interview, but it does mean that they may be asked to provide additional evidence that they have been living in the US and traveling abroad temporarily, and not the other way around.

"An applicant filing under the general naturalization provision may file his or her application up to 90 days before he or she would first meet the required 5-year period of continuous residence as an LPR.​ Although an applicant may file early according to the 90 day early filing provision, the applicant is not eligible for naturalization until he or she has reached the required five-year period of continuous residence as an LPR.​

​

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 applicant would satisfy the five-year continuous residence requirement for the first time on June 10, 2010 USCIS will begin to calculate the 90-day early filing period from June 9, 2010. In such a case, the earliest that the applicant is allowed to file would be Ma​rch​ 12, 2010 (90 calendar days earlier).​

​

In cases where an applicant has filed early and the required three month period of residence in a State or Service District falls within the required five-year period of continuous residence, jurisdiction for filing will be based on the three-month period immediately preceding the examination on the application.​"

So again, my advice would be to wait, but if there's some reason for urgency, you can take a shot and apply early.