3 yr period if left USA for 30 days

[stech786 232]

A spouse on US national, for green card received on 04/03/21. And visited home country for 30 days during that period. Do I exclude 30 days from 3 yr rule? Or can she apply for N400 on 01/03/23? Or 02/03/23?

 

 

[powerpuff 5,914]

*** Topic moved from CR1/IR1 spousal visa forum to US citizenship General discussion - this is related to n-400, not spousal visa ***

[OldUser 4,891]

19 hours ago, stech786 said:

A spouse on US national, for green card received on 04/03/21. And visited home country for 30 days during that period. Do I exclude 30 days from 3 yr rule? Or can she apply for N400 on 01/03/23? Or 02/03/23?

 

 

I'd start counting 3 years minus 90 days from the day the spouse returned from that trip. This will defeat any accusation from USCIS that the spouse didn't start residency at the time the GC was received.

[stech786 232]

3 minutes ago, OldUser said:

I'd start counting 3 years minus 90 days from the day the spouse returned from that trip. This will defeat any accusation from USCIS that the spouse didn't start residency at the time the GC was received.

Not sure if I understand 

are you saying 02/04/24 is when I can apply?

 

if so, where does this says on requirements? I know for 5 yr rule,

those days were me excluded from 5 yrs Residency 

[OldUser 4,891]

42 minutes ago, stech786 said:

Not sure if I understand 

are you saying 02/04/24 is when I can apply?

 

if so, where does this says on requirements? I know for 5 yr rule,

those days were me excluded from 5 yrs Residency 

Anecdotal knowledge from reading Reddit / VJ  and watching over 500 hours of videos on immigration subject.

 

So, Resident Since date is 04/03/2021.

3 year anniversary of LPR status is 04/03/2023. The earliest LPR can apply is 90 days before, which is 01/04/2023.

 

Now, if spouse traveled internationally within a month of receiving GC, there's two potential issues:

 

1) USCIS can perceive residency starting on the day LPR returned from the trip, and not when GC was received. This is based on anecdotal knowledge.

2) If you, the US citizen spouse, didn't travel with your LPR spouse, you may be percieved to have broken marital union requirement. Again, based on anecdotal knowledge, USCIS toughen the rule in the last few years. They expect couple to be together under one roof on a daily basis, and if there's a separation for some time (no hard rule), they arbitrarily claim marital union was broken.

 

Lastly, I strongly advice applying few days after the window opens.

 

Again, none of these things are set in stone, I'm just giving a proposal to apply on 3 year minus 90 day anniversary of coming back from the first trip. The delay of 30-40 days of applying for N-400 is negligible if you think the processing time can be 6-12 months. But then the case would be bullet proof and there would not be a reason for denial.

 

If this 30 day trip happened a while after receiving GC, I would ignore anything said above and apply 90 days early. Of course, keeping in mind marital union issue IF you weren't travelling together for some time.

 

If LPR files online, N-400 can be prepared for a while and saved, only to be submitted when actual filing window opens.

 

 

 

 

 

Edited November 29, 2023 by OldUser

[OldUser 4,891]

P.S you used the term "US National".

 

I hope what you meant by it is US citizen.

 

I don't believe spouses of US nationals can apply under 3 year rule. But spouses of US citizens can.

 

From internet:

U.S. National: This status is less common and applies to individuals who are not U.S. citizens but have a formal connection to the U.S. The most common example is people born in American Samoa or Swains Island, who are U.S. nationals but not U.S. citizens. U.S. nationals can travel freely to and live in the U.S., but they cannot vote in federal elections or hold certain federal government jobs. U.S. nationals can apply for citizenship under the same

 

[stech786 232]

https://www.uscis.gov/forms/uscis-early-filing-calculator
 

sorry for confusion, I meant spouse of US citizens

 

 

I never said I left after getting GC. We took a vacation in 2022 outside of USA together for 30 days. still married & living together since 2021

 

I am on IR-1 green card

 

 

 

 

[OldUser 4,891]

40 minutes ago, stech786 said:

https://www.uscis.gov/forms/uscis-early-filing-calculator
 

sorry for confusion, I meant spouse of US citizens

 

 

I never said I left after getting GC. We took a vacation in 2022 outside of USA together for 30 days. still married & living together since 2021

 

I am on IR-1 green card

 

 

 

 

Sorry for confusion and thank you for clarifying. So you're an LPR and your spouse is a US citizen?

 

Apply on or after 01/04/2024

 

I'd probably file on 01/05/2024.

 

I put 2023 in earlier comment by mistake. I meant 2024.

 

Your 30 day trip is not an issue. As long as you spent at least 18 months in the US in the last 3 years, and didn't have trips of 180 days or more, you're OK.

Edited November 30, 2023 by OldUser

[stech786 232]

1 minute ago, OldUser said:

Sorry for confusion and thank you for clarifying. So you're an LPR and your spouse is a US citizen?

 

Apply on or after 01/04/2024

 

I'd probably file on 01/05/2024.

 

I put 2023 in earlier comment by mistake. I meant 2024

 
 

thank you! 
 

I am hoping to find this written rule in USCIS website to avoid issues. I know when under 5 yr LPR has to live for 5 yrs in USA 

[OldUser 4,891]

3 minutes ago, stech786 said:

 
 

thank you! 
 

I am hoping to find this written rule in USCIS website to avoid issues. I know when under 5 yr LPR has to live for 5 yrs in USA 

For 5 year rule, LPR needs to spend 30 months inside the US.

 

Here are the rules:

 

https://www.uscis.gov/citizenship/continuous-residence-and-physical-presence-requirements-for-naturalization

[stech786 232]

51 minutes ago, OldUser said:

For 5 year rule, LPR needs to spend 30 months inside the US.

 

Here are the rules:

 

https://www.uscis.gov/citizenship/continuous-residence-and-physical-presence-requirements-for-naturalization

 

right I saw that. It’s bit confusing. So should I apply 01/03/24 or 02/03/24. Since I was outside of USA for 30 days. Technically I’m adding those days back.

 

does this mean residency rule for 5 yr is bit different from 3 yr marriage based?

[OldUser 4,891]

Just now, stech786 said:

 

right I saw that. It’s bit confusing. So should I apply 01/03/24 or 02/03/24. Since I was outside of USA for 30 days. Technically I’m adding those days back.

 

You don't need to add 30 days to filing date. It would not hurt at all, just not necessary. Again, if you use date calculator, the 90 day window opens on 01/04/2024, not 01/03/2024.

 

If you apply on 01/05/2024 or later you'll be bulletproof.

 

2 minutes ago, stech786 said:

does this mean residency rule for 5 yr is bit different from 3 yr marriage based?

 

Yes, physical presence requirement is different for 5 year rule and 3 year rule.

For 3 year rule, less presense is required. However, you need to be married and living in marital union for all 3 years. The US citizen needs to be a citizen for at least 3 years also.

 

Continuous residence requirement is the same for 3 and 5 year rule

 

[stech786 232]

1 hour ago, OldUser said:

You don't need to add 30 days to filing date. It would not hurt at all, just not necessary. Again, if you use date calculator, the 90 day window opens on 01/04/2024, not 01/03/2024.

 

If you apply on 01/05/2024 or later you'll be bulletproof.

 

 

Yes, physical presence requirement is different for 5 year rule and 3 year rule.

For 3 year rule, less presense is required. However, you need to be married and living in marital union for all 3 years. The US citizen needs to be a citizen for at least 3 years also.

 

Continuous residence requirement is the same for 3 and 5 year rule

 

Thanks for details 

 
my spouse is US citizen since 2015. We have been married since 2018. Entered USA in 2021, living together since 2021

 

what is difference between. continuous residence & physical presence? I read online that one must not stay out of USA for +6 months. Which doesn’t apply to us. (That’s continuous resident)

 

 

[OldUser 4,891]

1 hour ago, stech786 said:

Thanks for details 

 
my spouse is US citizen since 2015. We have been married since 2018. Entered USA in 2021, living together since 2021

 

what is difference between. continuous residence & physical presence? I read online that one must not stay out of USA for +6 months. Which doesn’t apply to us. (That’s continuous resident)

 

 

Continuous residence - you didn't have any international trips where one trip lasted over 180 days on the last 3 years.

 

Physical presence - you should have spent 18 month or more inside the US in the last 3 years.

[OldUser 4,891]

Just now, OldUser said:

Continuous residence - you didn't have any international trips where one trip lasted over 180 days on the last 3 years.

 

Physical presence - you should have spent 18 month or more inside the US in the last 3 years.

These rules are to prevent scenarios when people pretens to reside in the US when they don't, such as:

1) Somebody lives outside of the US but comes to US every 6 months for few days to keep green card alive

2) Somebody spent more than half time overseas

 

Both will be denied^