Applying for citizenship - 3 year rule

[vinnie&andy 118]

Hello. I filed for ROC in December 2020. I was assigned to the Potomac service center. Haven’t heard anything yet. I received my green card March 2019 and technically I am eligible to apply for citizenship now. However, me and my husband lived in different cities for 9 months due to work (we submitted all the evidence for the ROC to support that we were still married and seeing each other multiple times a month). Since the 3-year rule states that you have to live for the past 3 years with the US citizen, would it be recommended to apply for citizenship now since we lived in different cities for 9 months? We have continuously been married and have all the evidence. 
thank you 

[SteveInBostonI130 3,319]

March 2019... You have been married and been a GC holder for 42 months.  42 - 9 = 33 months being a GC holder and residing with your spouse.  You could file in December and have the 3 years' living in marital union requirement.   Or you can file now and argue for "Involuntary Separation" due to required travel for employment.

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2#S-D-3

 

Quote

Involuntary Separation

Under very limited circumstances and where there is no indication of marital disunity, an applicant may be able to establish that he or she is living in marital union with his or her U.S. citizen spouse even though the applicant does not actually reside with citizen spouse. An applicant is not made ineligible for naturalization for not living in marital union if the separation is due to circumstances beyond his or her control, such as: ^[32] 

• Service in the U.S. armed forces; or

• Required travel or relocation for employment.

USCIS does not consider incarceration during the time of required living in marital union to be an involuntary separation.

 

EDIT:  You are allowed to file up to 90 days before the qualifying date.  Therefore, you can file sometime this month (based on when in March 2019 is your "residence since" date) without needing to justify the 9 month's involuntary separation.

Edited September 13, 2022 by SteveInBostonI130

[Chancy 6,233]

*** Moved from ROC General Discussion to US Citizenship General Discussion ***

 

[Mike E 11,723]

31 minutes ago, vinnie&andy said:

However, me and my husband lived in different cities for 9 months due to work

When did these 9 months end?

[vinnie&andy 118]

7 minutes ago, Mike E said:

When did these 9 months end?

They ended March 2020. 

[vinnie&andy 118]

30 minutes ago, SteveInBostonI130 said:

March 2019... You have been married and been a GC holder for 42 months.  42 - 9 = 33 months being a GC holder and residing with your spouse.  You could file in December and have the 3 years' living in marital union requirement.   Or you can file now and argue for "Involuntary Separation" due to required travel for employment.

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2#S-D-3

 

 

EDIT:  You are allowed to file up to 90 days before the qualifying date.  Therefore, you can file sometime this month (based on when in March 2019 is your "residence since" date) without needing to justify the 9 month's involuntary separation.

Thank you so much for your help. Doesn’t the rule state that we must to have lived continuously for the past 3 years at the time that naturalization is filed? we moved back together in March 2020. 

[SteveInBostonI130 3,319]

22 minutes ago, vinnie&andy said:

Thank you so much for your help. Doesn’t the rule state that we must to have lived continuously for the past 3 years at the time that naturalization is filed? we moved back together in March 2020. 

Nope.  The rules are for continuous US residence.  For marital union, it just states:

 

Quote

• 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).

 

No mention of "continuous"

[Mike E 11,723]

18 hours ago, vinnie&andy said:

They ended March 2020. 

I would on apply March 2023 on the basis of being married for 3 years to a U.S. Citizen.  You can try sooner but you might get all the way to the interview (which could be a year after filing) and get denied. 
 

See 

 

Edited September 14, 2022 by Mike E

[vinnie&andy 118]

1 hour ago, Mike E said:

I would on apply March 2023 on the basis of being married for 3 years to a U.S. Citizen.  You can try sooner but you might get all the way to the interview (which could be a year after filing) and get denied. 
 

See 

 

Thank you for your advice. We married December 2018 so it’s almost 4 years of marriage. If we add the months we have lived together, it’s 33 months(not continuously) so we are missing 3 months, which would open the window to apply right now. Would you still recommend not applying for citizenship yet? 

[Mike E 11,723]

1 minute ago, vinnie&andy said:

Thank you for your advice. We married December 2018 so it’s almost 4 years of marriage. If we add the months we have lived together, it’s 33 months(not continuously) so we are missing 3 months, which would open the window to apply right now. Would you still recommend not applying for citizenship yet? 

1. There is no early filing window if you have not been in a martial union for 36 months. We both agree that you have not been in a martial union for 36 months. 
 

2. As the link I provided shows, USCIS can (even illegally) deny your N-400 case if it determines you have not been in a martial union.  My unprofessional opinion is that the martial union needs to be 3 continuous years and you needed to have been in each other’s physical presence on day 1 and on day 1095 or (if there was a leap year) day 1096 of the period of marital union, with no “significant” breaks in the union. You had a 9 month break.  The law might be on your side, but the IO might not be on the side of the law or you.
 

 If you want to file when you have 36 months of discontinuous union I think you should do it with a lawyer who is capable of quoting chapter and verse from case law and statute when you have your interview.  
 

Otherwise I think you should file March 2023 when you presumably have 36 months of continuous union.  

[Rocio0010 5,562]

If you don't mind sparing $700, then by all means go ahead and apply.

But if you are in no rush, I would just wait until March 2023. And in that way, you are certain the timing will work.

Plus, if you file in March 2023 we will be N400 buddies!😆

[Mike X Man 37]

Too risky. If you are even questioning anything, don't do it. Murphy's Law is a b!tch. Just wait and do it under the 5 year rule. 

Edited September 15, 2022 by Mike X Man

[roxion 1]

I would try if I were you. You were and remained married.

[Mr Genuis 91]

On 9/13/2022 at 9:54 AM, vinnie&andy said:

Hello. I filed for ROC in December 2020. I was assigned to the Potomac service center. Haven’t heard anything yet. I received my green card March 2019 and technically I am eligible to apply for citizenship now. However, me and my husband lived in different cities for 9 months due to work (we submitted all the evidence for the ROC to support that we were still married and seeing each other multiple times a month). Since the 3-year rule states that you have to live for the past 3 years with the US citizen, would it be recommended to apply for citizenship now since we lived in different cities for 9 months? We have continuously been married and have all the evidence. 
thank you 

The rules is that. You have to be marraid to that US SPOUSE for 3 years, it's doesn't say live with the spouse.

[OldUser 4,799]

@Mr Genuis yes it does say you need to be married and live together. Quote:

 

"In general, all naturalization applicants filing on the basis of marriage to a U.S. citizen must continue to be the spouse of a U.S. citizen from the time of filing the naturalization application until the applicant takes the Oath of Allegiance. In addition, some spousal naturalization provisions require that the applicant “live in marital union” with his or her citizen spouse for at least 3 years immediately preceding the date of filing the naturalization application. [19] USCIS considers an applicant to “live in marital union” with his or her citizen spouse if the applicant and the citizen actually reside together.

An applicant does not meet the married and “living in marital union” requirements if:

The applicant is not residing with his or her U.S. citizen spouse at the time of filing or during the time in which the applicant is required to be living in marital union with the U.S. citizen spouse; or

The marital relationship is terminated at any time prior to taking the Oath of Allegiance.

If the applicant ceases to reside with his or her U.S. citizen spouse between the time of filing and the time at which the applicant takes the Oath of Allegiance, the officer should consider whether the applicant met the living in marital union requirement at the time of filing."

 

Source: https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2