90 day early filing: Marital union vs continuous residence requirements

[dirk_diggler 107]

I've been reading up on whether 90-day early filing applies to my case, which is a marriage to a USC.

 

There seems to be two relevant requirements:

1.  Continuous residence as a LPR for 3 years

2.  Live in marital union for 3 years

 

My understanding from reading various articles on USCIS is that the 90-day early filing applies to #1 above.  In other words, you only need to be a LPR for 3 years - 90 days before you can send your paperwork.

However, can someone shed some light on #2?  Does that mean that the USC/LPR MUST have lived together for a complete 3 years before sending the N-400?

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

Edited March 27, 2017 by dirk_diggler

[broppy 204]

I had a concern of my own regarding the 90 days so looked up the law. My understanding is the same as yours - the 90 day early filing provision only relates to your first requirement - continuous residence as a LPR for 3 years. All other requirements for naturalization must be met at the time of filing. Unless you can demonstrate that you were already living in marital union prior to taking up residence in the US, you should wait until you've done so for a full 3 years before filing.

 

The relevant law, 8 CFR 319.1 states "An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse". It also goes on to clarify 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".

 

I believe you can take advantage of that involuntary separation definition to make a case that you were in fact living in marital union from the date of your marriage but separated because of circumstances beyond your control (presumably something along the lines of USC had to return to US for work while spouse was forced to remain in India while waiting for immigrant visa to be issued). If you can make that fit your situation, then you do satisfy that second requirement and can take advantage of filing 90 days early.

[dirk_diggler 107]

45 minutes ago, broppy said:

I had a concern of my own regarding the 90 days so looked up the law. My understanding is the same as yours - the 90 day early filing provision only relates to your first requirement - continuous residence as a LPR for 3 years. All other requirements for naturalization must be met at the time of filing. Unless you can demonstrate that you were already living in marital union prior to taking up residence in the US, you should wait until you've done so for a full 3 years before filing.

 

The relevant law, 8 CFR 319.1 states "An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse". It also goes on to clarify 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".

 

I believe you can take advantage of that involuntary separation definition to make a case that you were in fact living in marital union from the date of your marriage but separated because of circumstances beyond your control (presumably something along the lines of USC had to return to US for work while spouse was forced to remain in India while waiting for immigrant visa to be issued). If you can make that fit your situation, then you do satisfy that second requirement and can take advantage of filing 90 days early.

Glad to see there's someone who understands what I'm talking about!  It's odd that this distinction isn't emphasized since I think a lot of spouses that came to the U.S. on a CR-1/IR-1 would be affected.

[Stevephoto 230]

2 hours ago, dirk_diggler said:

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

Sorry, I am confused here. I think I missed something, but if your spouse received LRP status upon arrival to the US AND you started living together on that date, wouldn't that satisfy both rules (LRP for three years married to a USC and living together for three years)?

[dirk_diggler 107]

2 minutes ago, Stevephoto said:

Sorry, I am confused here. I think I missed something, but if your spouse received LRP status upon arrival to the US AND you started living together on that date, wouldn't that satisfy both rules (LRP for three years married to a USC and living together for three years)?

That's the question I'm trying to answer in this thread 

 

 

Edited March 27, 2017 by dirk_diggler

[Stevephoto 230]

1 minute ago, dirk_diggler said:

That's the answer I'm looking for in this thread 

 

 

IF your spouse became an LRP upon arrival AND you've been living together since that day AND it has been 3 years minus 90 days, then it sure sounds to me like you qualify!  I think the difference is that CR-1 holders obtain LPR status when they arrive whereas K-1 visa holders obtain LPR residence only after filing for AOS. The date you are looking for is on the GC. It should say something like LPR since xx/xx/xxxx. That date starts the clock ticking!

[broppy 204]

6 minutes ago, Stevephoto said:

IF your spouse became an LRP upon arrival AND you've been living together since that day AND it has been 3 years minus 90 days, then it sure sounds to me like you qualify!

That's the tricky bit. You're allowed to apply after 2 years 275 days as an LPR, but you're not allowed to apply before you've been living in marital union for 3 whole years. There's no 90 day rule for the marital union requirement. 

But as I said earlier, it's likely a non-issue as people in this situation can probably claim they were involuntarily separated by the immigration process and were living in marital union from the date of their marriage rather than the date they actually started living together under the same roof.

[Stevephoto 230]

5 minutes ago, broppy said:

That's the tricky bit. You're allowed to apply after 2 years 275 days as an LPR, but you're not allowed to apply before you've been living in marital union for 3 whole years. There's no 90 day rule for the marital union requirement. 

But as I said earlier, it's likely a non-issue as people in this situation can probably claim they were involuntarily separated by the immigration process and were living in marital union from the date of their marriage rather than the date they actually started living together under the same roof.

Ah! I get it now. Thanks for clarifying. This is one of those (rare) cases where K-1 has a "90-day" head start on the CR-1.

 

The marital union from the date of marriage makes sense to me, but just to expand my own understanding, a CR-1 couple could file without that claim at the three year mark (NOT minus the 90 days), correct? 

[Stevephoto 230]

1 hour ago, dirk_diggler said:

Glad to see there's someone who understands what I'm talking about!  It's odd that this distinction isn't emphasized since I think a lot of spouses that came to the U.S. on a CR-1/IR-1 would be affected.

NOW I get it and you are right. I wonder why this is not highlighted more in the K1-CR1 comparisons. This is a very good point. 

 

[broppy 204]

1 minute ago, Stevephoto said:

Ah! I get it now. Thanks for clarifying. This is one of those (rare) cases where K-1 has a "90-day" head start on the CR-1.

Yeah, but only because USCIS is so slow. If you could actually adjust status and get your green card within 90 days of marriage, K-1 might be in a similar situation.

1 minute ago, Stevephoto said:

The marital union from the date of marriage makes sense to me, but just to expand my own understanding, a CR-1 couple could file without that claim at the three year mark (NOT minus the 90 days), correct? 

Yes. If marital union strictly meant living together (or applicant was unable to claim involuntary separation for some reason), I expect you'd have to wait the extra 90 days and file on the actual three year anniversary.

And just to be clear: I am not a lawyer (and even if I were, I am not your lawyer)!

[Stevephoto 230]

3 minutes ago, broppy said:

Yeah, but only because USCIS is so slow. If you could actually adjust status and get your green card within 90 days of marriage, K-1 might be in a similar situation.

Yes. If marital union strictly meant living together (or applicant was unable to claim involuntary separation for some reason), I expect you'd have to wait the extra 90 days and file on the actual three year anniversary.

And just to be clear: I am not a lawyer (and even if I were, I am not your lawyer)!

[dirk_diggler 107]

Thanks for the discussion guys.

 

Hopefully we hear from others on VJ who are in the same situation (CR-1/IR-1) and used the 90-day early filing to see whether or not they have ran into any issues.

[POA 178]

3 hours ago, dirk_diggler said:

Thanks for the discussion guys.

 

Hopefully we hear from others on VJ who are in the same situation (CR-1/IR-1) and used the 90-day early filing to see whether or not they have ran into any issues.

 

I was on CR-1 and filed ROC 90 days prior to my 2nd year GC anniversary. My ROC was approved around 5 months from filing. I also filed within 90 days prior to my 3rd anniv as LPR for my N-400 and currently awaiting for my interview schedule.

Edited March 28, 2017 by POA

[POA 178]

8 hours ago, dirk_diggler said:

I've been reading up on whether 90-day early filing applies to my case, which is a marriage to a USC.

 

There seems to be two relevant requirements:

1.  Continuous residence as a LPR for 3 years

2.  Live in marital union for 3 years

 

My understanding from reading various articles on USCIS is that the 90-day early filing applies to #1 above.  In other words, you only need to be a LPR for 3 years - 90 days before you can send your paperwork.

However, can someone shed some light on #2?  Does that mean that the USC/LPR MUST have lived together for a complete 3 years before sending the N-400?

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

2. 

 

8 hours ago, dirk_diggler said:

I've been reading up on whether 90-day early filing applies to my case, which is a marriage to a USC.

 

There seems to be two relevant requirements:

1.  Continuous residence as a LPR for 3 years

2.  Live in marital union for 3 years

 

My understanding from reading various articles on USCIS is that the 90-day early filing applies to #1 above.  In other words, you only need to be a LPR for 3 years - 90 days before you can send your paperwork.

However, can someone shed some light on #2?  Does that mean that the USC/LPR MUST have lived together for a complete 3 years before sending the N-400?

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

2. You should have been married to the same USC AND LPR for 3 years minus 90 days.

[POA 178]

8 hours ago, dirk_diggler said:

I've been reading up on whether 90-day early filing applies to my case, which is a marriage to a USC.

 

There seems to be two relevant requirements:

1.  Continuous residence as a LPR for 3 years

2.  Live in marital union for 3 years

 

My understanding from reading various articles on USCIS is that the 90-day early filing applies to #1 above.  In other words, you only need to be a LPR for 3 years - 90 days before you can send your paperwork.

However, can someone shed some light on #2?  Does that mean that the USC/LPR MUST have lived together for a complete 3 years before sending the N-400?

 

Some details on my case:  spouse came to the U.S. on CR-1, and received LPR status on arrival.  At this date, we started living together.  My understanding is that we do not qualify for 90-day early filing due to requirement #2.

 

Reference: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

In addition to this, you as the USC should have been USC for the past 3 years.