Confirm my suspicions?

[lucyrich 19]

OK, we've finished the removal of conditions part, now looking toward naturalization.

Note our timeline in our signature. Lucy came in on a CR-1 visa, thus got LPR status the day of entry into the US. We started living together as a married couple on that day. We had lived together for a few months before our wedding, but from April 7, 2004 until Jan 22, 2005, we were married but living in separate countries waiting for the visa approval.

We know the continuous residence period is three years when married to and living together in valid marital union with a US Citizen spouse.

We also know that you can apply 90 days before completing the continuous residence requirement, but that you must have completed all other requirements prior to applying.

Our case is unusual because we had not been living together as a married couple before gaining LPR status.

If we had been living together as a married couple for a few months before being approved with LPR status, then there's no question that we'd be able to send the N-400 90 days before completing three years as an LPR (approximately Oct 24, 2007).

But by my reading, we're not yet eligible, since in Oct of 2007, we won't have completed three years living together. I think the earliest we can safely mail the N-400 is Jan 22, 2008, because on that date, we will have completed living together as a married couple for three years.

Has anyone run across this issue? Can anyone authoritatively confirm or deny my reading of the requirements?

[meauxna 15]

22 Jan, 2005: Flew home together! CCS->MIA->SFO

From this date, Lucy is LPR, Lucy is married to you...oh, I see where your Q is...about sending the *application* in 90 days ahead. Well...

Let's overlook the mis-used 'file for' ...

Family Members of U.S. Citizens

Spouses of U.S. Citizens

Generally, certain lawful permanent residents married to a U.S. citizen may file for naturalization after residing continuously in the United States for three years if immediately preceding the filing of the application:

the applicant has been married to and living in a valid marital union with the same U.S. citizen spouse for all three years;

the U.S. spouse has been a citizen for all three years and meets all physical presence and residence requirements; and

the applicant meets all other naturalization requirements

I don't read "living together, in the same house". You did have a valid marital union before she arrived, didn't you? (psst: yes!)

If you are applying based on five years as a Lawful Permanent Resident or based on three years as a Lawful Permanent Resident married to a U.S. citizen, you may apply for naturalization up to 90 days before you meet the ''continuous residence'' requirement. You must meet all other requirements at the time that you file your application with us.

This doesn't seem to contradict my thought either. Have you dug up the INA on this?

I'll do some searching on BE as I think this was raised at one time and may have had a lawyer comment on it.

(bah, cancel that edit..)

Edited April 17, 2007 by meauxna

[Marilyn. 340]

OK, we've finished the removal of conditions part, now looking toward naturalization.

Note our timeline in our signature. Lucy came in on a CR-1 visa, thus got LPR status the day of entry into the US. We started living together as a married couple on that day. We had lived together for a few months before our wedding, but from April 7, 2004 until Jan 22, 2005, we were married but living in separate countries waiting for the visa approval.

We know the continuous residence period is three years when married to and living together in valid marital union with a US Citizen spouse.

We also know that you can apply 90 days before completing the continuous residence requirement, but that you must have completed all other requirements prior to applying.

Our case is unusual because we had not been living together as a married couple before gaining LPR status.

If we had been living together as a married couple for a few months before being approved with LPR status, then there's no question that we'd be able to send the N-400 90 days before completing three years as an LPR (approximately Oct 24, 2007).

But by my reading, we're not yet eligible, since in Oct of 2007, we won't have completed three years living together. I think the earliest we can safely mail the N-400 is Jan 22, 2008, because on that date, we will have completed living together as a married couple for three years.

Has anyone run across this issue? Can anyone authoritatively confirm or deny my reading of the requirements?

isn't this the case for most people??..... because you need the visa in order to move to the US so you can live together..... is it even possible to live together before you gain LPR status, I mean if you come to the US with a CR1 visa??

my hubby and I didn't live together before I gained LPR status.....

[Marilyn. 340]

REQUIREMENTS:

If you are at least 18 years old and:

Are currently married to and living with a U.S. citizen;

and

Have been married to and living with that same U.S. citizen for the past 3 years;

and

Your spouse has been a U.S. citizen for the past 3 years.

Continuous Residence: 3 years as a Permanent Resident without leaving the United States for trips of 6 months or longer.

If you are applying based on 5 years as a Permanent Resident or 3 years as a Permanent Resident married to a U.S. citizen, you may file for naturalization up to 90 days before you meet the continuous residence requirement. For example, if you are applying based on 3 years of continuous residence as a Permanent Resident married to a U.S. citizen, you can apply any time after you have been a Permanent Resident in continuous residence for 3 years minus 90 days. You may send your application before you have met the requirement for continuous residence only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application. You must also meet all the other eligibility requirements when you file your application with USCIS.

http://www.uscis.gov/files/article/M-476.pdf

I am trying to understand that statement So I could file for residency 90 days before the 3 years but only if I have been married and living in the US with my spouse for 3 years at that time.... That kind of sucks for the CR1 people, they have to wait a bit longer before they can file.....

Edited April 17, 2007 by MarilynP

[lucyrich 19]

Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application.

That sentence, as Marilyn quoted from the M-476, is the one which most clearly seems to indicate you must have been living together for at least three years. Of course, the M-476 isn't as authoritative as the law or a court decision. And maybe I'm reading the "living with" in a way that the writers didn't intend, but it sure sounds like that means living in the same house under the same roof.

isn't this the case for most people??..... because you need the visa in order to move to the US so you can live together..... is it even possible to live together before you gain LPR status, I mean if you come to the US with a CR1 visa??

Most people here seem to enter on a K visa and adjust status, or perhaps enter on a K visa, and later go abroad for a short trip to get a CR-1 visa. The other popular route is to get a CR-1/IR-1 visa via DCF, which often requires that the USC have residence status abroad in the alien's country. In all of these routes, the couple would have some time living together before gaining LPR status. It was only recently (about mid-2004) that I-130s filed at the USCIS started being processed in under a year. So it's only now, three years later, that this situation is coming up commonly. Then again, I'd guess it probably came up before the K-3 visa was invented, when the CR-1/IR-1 was the only route for a married couple.

But yes, if the USC has lived in the US for virtually the entire time, and the alien stayed abroad while getting a CR-1 visa, then I'd expect the couple would proably be in our situation, where they only started living together on the day the alien got LPR status.

[Marilyn. 340]

Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application.

That sentence, as Marilyn quoted from the M-476, is the one which most clearly seems to indicate you must have been living together for at least three years. Of course, the M-476 isn't as authoritative as the law or a court decision. And maybe I'm reading the "living with" in a way that the writers didn't intend, but it sure sounds like that means living in the same house under the same roof.

isn't this the case for most people??..... because you need the visa in order to move to the US so you can live together..... is it even possible to live together before you gain LPR status, I mean if you come to the US with a CR1 visa??

Most people here seem to enter on a K visa and adjust status, or perhaps enter on a K visa, and later go abroad for a short trip to get a CR-1 visa. The other popular route is to get a CR-1/IR-1 visa via DCF, which often requires that the USC have residence status abroad in the alien's country. In all of these routes, the couple would have some time living together before gaining LPR status. It was only recently (about mid-2004) that I-130s filed at the USCIS started being processed in under a year. So it's only now, three years later, that this situation is coming up commonly. Then again, I'd guess it probably came up before the K-3 visa was invented, when the CR-1/IR-1 was the only route for a married couple.

But yes, if the USC has lived in the US for virtually the entire time, and the alien stayed abroad while getting a CR-1 visa, then I'd expect the couple would proably be in our situation, where they only started living together on the day the alien got LPR status.

mmmm, but one of the requirements is that you have to have had continuous residency for 3 years as a LPR.... this is all very confusing

[lucyrich 19]

OK, I've done a little more digging, and I'm very confused. I wish I could read a decision or a memorandum that specifically addresses this point, but I haven't found one. I'm leaning toward the theory that the three years of marital union means you have to have lived in the same house with your spouse, but it's only required for the three years prior to the examination date, that is, the date they finally get around to approving your application, not the date you first send the paperwork in. But I'm very confused and unsure about that.

Anyway, here are the laws and regulations

INA 319(a) lists the 3 year requirement

(a) Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent reside nce, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

8 CFR 319.1 clarifies this

(a) Eligibility. To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:

(1) Has been lawfully admitted for permanent residence to the United States;

(2) Has resided continuously within the United States, as defined under §316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;

(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;

(b) Marital union--(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

Two important points: One, "marital union" means actually residing together. But second, the three year marital union requirement is for the three years preceding the date of EXAMINATION, not the date of filing. I've been able to find several court cases that talk about couples separating (but not yet divorcing) after having filed the N-400, but shortly before being naturalized, and both of these points are clear when the time spent living apart is immediately before being approved for naturalization. But in my case, I'm concerned with time spent living apart at the beginning of the period, 3 years before filing.

INA 334(a) establishes the 90 day "head start" provision that lets you file before you've finished the continuous residence requirement.

(a) An applicant for naturalization shall make and file with the Attorney General a sworn application in writing, signed by the applicant in the applicant's own handwriting, if physically able to write, which application shall be on a form prescribed by the Attorney General and shall include averments of all facts which in the opinion of the Attorney General may be material to the applicant's naturalization, and required to be proved under this title. In the case of an applicant subject to a requirement of continuous residence under section 316(a) or 319(a), the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement.

It's curious to note that the statute says 3 months, not 90 days, not that this distinction is so important here.

8 CFR 334.2(b) clarifies this a little, but doesn't add much info that would be relevant to our case.

(b) An application for naturalization may be filed up to 90 days prior to the completion of the required period of residence, which may include the three-month period of residence required to establish jurisdiction under section 316(a) or 319(a) of the Act.

[lucyrich 19]

I finally found something in the adjudicator's field manual that addresses this issue explicitly. It looks like the couple must have been married and living together under the same roof for three years prior to the date of filing. The 90 day "head start" isn't available in our case.

I came to the wrong conclusion because the regulation conflicts with the statute, and I went with the regulation, not the statute.

From the Adjudictator's field manual, chapter 74

(2) Issues Coinciding with Marital Union.

(A) Filing the N-400 under Section 319(a). According to section 319(a) of the Act, an alien must have completed three years of marriage at the time of filing the application. 8 CFR 319.1(a)(3) states that the applicant must have been married three years preceding the date of examination on the application. Because the statute and regulations conflict, the statute applies to the case and the applicable date for determining eligibility under section 319(a) is the date of filing.

Example: An applicant filed his application for naturalization pursuant to section 319(a) of the Act on September 28, 1998, and appeared for his examination on September 21, 1999. He was granted permanent residence on November 4, 1994 based on an approved employment based petition. On October 29, 1995, he married a United States citizen. The Service received the N-400 on September 28, 1998, one month before the third anniversary of his marriage to a United States citizen.

By regulation he is eligible, by statute he is not. In this case, the applicant did not have the required three years of marriage to a United States citizen as of the date that he applied for naturalization, and he is not eligible for naturalization under that section of law. He also does not have the required residence to qualify under section 316 and, unless he is eligible under another provisions of law, he is not eligible to naturalize based on this application.

Anyway, as a practical matter, it seems like there's a very good chance the adjudicator would attempt to deny the N-400 if we filed it 90 days prior to the three year anniversary of the day we started living together and she gained LPR status. Regardless of whether that decision would ultimately be held to be right or wrong, it would probably delay naturalization by more than 90 days. The safer, likely faster route to naturalization seems to be to wait until we've been living under the same roof for a full 3 years, when eligibility is unquestionable.

[meauxna 15]

Anyway, as a practical matter, it seems like there's a very good chance the adjudicator would attempt to deny the N-400 if we filed it 90 days prior to the three year anniversary of the day we started living together and she gained LPR status. Regardless of whether that decision would ultimately be held to be right or wrong, it would probably delay naturalization by more than 90 days. The safer, likely faster route to naturalization seems to be to wait until we've been living under the same roof for a full 3 years, when eligibility is unquestionable.

hunh! I reached the opposite conclusion from the AFM--that employment-based case has come up before at BE--those people clearly do not qualify. But, I think I could argue that you two *were* in a valid marital union before Lucy's arrival because she could not have come without one!

The IRS considered you two a "household" for their reporting purposes, for example.

I'm afraid our case is no help for two reasons. One, he didn't apply until after 3 years physically in the US, and two, we were indeed living together overseas and had that extra 3 months under our belt anyway.

I tend to think the app would be OK if you sent in early, but I can't argue with safe. For the piddling 3 months' difference, best to be safe than sorry.

It's so unfair that there is nowhere to get this clarified! Well, I *do* have my DD's phone number, but his office's policy might be different than yours!

ungh.

Worse yet. I found your case.. I'll let you read it because my head's ready to explode: http://tinyurl.com/yuwtpn

Both our arguments are in there, I didn't look to see which side won.

Oops, wanted to add this too: According to 8 CFR §319.1(B)(2)(i), a person is ineligible for naturalization as the spouse of a United States citizen under INA §319(a) if, before or after the filing of the application (until the person actually acquires U.S. citizenship), the marital union ceases to exist due to death or divorce. According to 8 CFR §319.1(B)(2)(ii), any legal separation will also break the continuity of the marital union. However, informal separations are evaluated on a case-by-case basis.

http://tinyurl.com/ysgrme

Bit of a narrower interpretation. I noticed on a JAG help site that they noted that temporary separation due to orders did not break the marital unity.

Edited April 18, 2007 by meauxna

[lucyrich 19]

But, I think I could argue that you two *were* in a valid marital union before Lucy's arrival because she could not have come without one!

Yep, I think that may be a valid argument, and if pressed against a wall, I'd certainly make that argument loudly and furiously. But we're not pressed against a wall. Given that the choice is whether to file 90 days early and risk an unfavorable finding, or wait 90 days for clear and unambiguous eligibility, I think we know what to do.

But I'd probably change my mind if I found a clear example where the USCIS handled a case like ours favorably.

Worse yet. I found your case.. I'll let you read it because my head's ready to explode: http://tinyurl.com/yuwtpn

Both our arguments are in there, I didn't look to see which side won.

Yep, I found the case, too. I read it, and concluded that the facts were too far different from ours for me to draw a relevant conclusion. But FWIW, Maduno lost. They decided his marital union was broken and he wasn't eligible for naturalization.

[Yodrak 7]

lucyrich,

I've been following this thread with interest but have not posted because I don't know the answer.

All I can suggest is maybe a consultation with a very experienced immigration attorney's office - someone like a Shusterman or a Folinsky - for an opinion?

Yodrak

OK, we've finished the removal of conditions part, now looking toward naturalization.

Note our timeline in our signature. Lucy came in on a CR-1 visa, thus got LPR status the day of entry into the US. We started living together as a married couple on that day. We had lived together for a few months before our wedding, but from April 7, 2004 until Jan 22, 2005, we were married but living in separate countries waiting for the visa approval.

We know the continuous residence period is three years when married to and living together in valid marital union with a US Citizen spouse.

We also know that you can apply 90 days before completing the continuous residence requirement, but that you must have completed all other requirements prior to applying.

Our case is unusual because we had not been living together as a married couple before gaining LPR status.

If we had been living together as a married couple for a few months before being approved with LPR status, then there's no question that we'd be able to send the N-400 90 days before completing three years as an LPR (approximately Oct 24, 2007).

But by my reading, we're not yet eligible, since in Oct of 2007, we won't have completed three years living together. I think the earliest we can safely mail the N-400 is Jan 22, 2008, because on that date, we will have completed living together as a married couple for three years.

Has anyone run across this issue? Can anyone authoritatively confirm or deny my reading of the requirements?

[June Kinney 0]

The bottomline;

This past three years, your LPR spouse has been married to you all along not with someone else

This past three years, your LPR spouse has been holding the greencard

This past three years, your LPR spouse has been in the U.S. for at least 18 months

This past three years, your LPR spouse hasn't been outside the U.S. longer than 6 months or a year or over on one trip

You guys can live separately if it's because of work or whatever but your marriage is still there, you still love each other, in this case, every thing is fine. The most important is your spouse has to be in the U.S. for the past 3 years.

Your spouse can file the N-400 in 90 days prior the 3 years anniversary of your spouse of having greencard or LPR status

Hopefully, this will help.

[convert-arb 0]

One can say "candy" as many times as one wishes - one's mouth won't feel any sweeter.

What is this whole "you love each other" horse-radish? Sure you love each other, but this doesn't make you any more eligible to apply.

The bottomline is this:

Guide to naturalization clearly states: Married to and living with for the past 3 years, which I would interpret as no, you can't file 90 days prior to the thir anniversary. I'd like to say that you can, but I just don't think so.

One the other hand, if you take a look at the worksheet at the end of the guide which is supposed to help you make a decision as to whether you are eligible, it just says "married to" without any mentioning of "living with." Which I would attribute to USCIS's sloppiness. I would adhere to the strickter standard. Just IMHO.

Edited April 23, 2007 by convert-arb

[convert-arb 0]

One can say "candy" as many times as one wishes - one's mouth won't feel any sweeter.

What is this whole "you love each other" horse-radish? Sure you love each other, but this doesn't make you any more eligible to apply.

The bottomline is this:

Guide to naturalization clearly states: Married to and living with for the past 3 years, which I would interpret as no, you can't file 90 days prior to the thir anniversary. I'd like to say that you can, but I just don't think so.

One the other hand, if you take a look at the worksheet at the end of the guide which is supposed to help you make a decision as to whether you are eligible, it just says "married to" without any mentioning of "living with." Which I would attribute to USCIS's sloppiness. I would adhere to the strickter standard. Just IMHO.

I am of course talking about lucyrich's question, which is my question as well. My wife and I started living together the day she came here on her CR-1 and I was trying to reseach whether can apply for her citizenship 90 days prior to her third anniversary as an LPR.

[lucyrich 19]

The bottomline;

This past three years, your LPR spouse has been married to you all along not with someone else

This past three years, your LPR spouse has been holding the greencard

This past three years, your LPR spouse has been in the U.S. for at least 18 months

This past three years, your LPR spouse hasn't been outside the U.S. longer than 6 months or a year or over on one trip

You guys can live separately if it's because of work or whatever but your marriage is still there, you still love each other, in this case, every thing is fine. The most important is your spouse has to be in the U.S. for the past 3 years.

Your spouse can file the N-400 in 90 days prior the 3 years anniversary of your spouse of having greencard or LPR status

Hopefully, this will help.

No, it doesn't really help much.

I'm not sure you read any part of the thread above. In addition to the fact that you didn't address any of the controversial points or the meaning of any regulation or court decision, I've underlined the parts that make me suspicious. We're talking about someone who initially arrived to the US on a CR-1 visa. Such a person, at the time of applying 90 days prior to the three year anniversary of LPR status, would NOT have been living in the US for a full three years, nor would such a person have held the greencard for three years. Applying 90 days prior to the 3 year anniversary of gaining status would be contrary to the M-476 guide to naturalization which says you must have been living together for three full years prior to applying.

Anyway, after mulling this over for awhile, my summary is:

The M-476 guide to naturalization clearly says you must have been living together for the full entire three years before you send in your application. But it doesn't carry the authority of statute or regulation. The statute says you must have been living "in valid marital union" for the full three years before filing, but doesn't explain whether or not valid marital union means sharing the household. The adjudicator's field manual clearly says the marital union must have existed for the entire three years prior to sending the application in. 8 CFR clarifies marital union to say Marital union--(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

The court, in the Maduno case, talks about the meaning of that definition of Marital union from 8 CFR. It does say that the word "General" in 8 CFR means there are probably exceptions. But it gives no guidance on what the exceptions might be.

I'm still not clear on the ultimate answer to this issue. I believe that, if the couple was married for at least three months prior to entering the US on the CR-1, a good case could be made that during those three months, they were living in valid marital union despite the fact that they were living apart -- i.e. that their case is one of those exceptions that were hinted at in the Maduno case. But a reasonable case could also be made that the narrower definition in 8 CFR holds, and perhaps one could even reach and claim that the intent of the statute and regulation is that the naturalization applicant have three full years of day-to-day contact with a USC in a US household. I don't know how an adjudicator would rule on this, and I'm unable to find a clear standard that says how an adjudicator must rule.

The cost of filing early and getting it wrong is potentially pretty high. A likely problem is that they would deny it, or they might delay for awhile as they figure out how to adjudicate it. That would likely negate the benefit of filing early. A much less likely, but still remotely possible, outcome is that they could approve it, and then later on, retroactively review the decision and revoke citizenship administratively. In comparison to these possibilities, the cost of waiting the extra 90 days for certain eligibility is low, at least for our own personal circumstances.

But I'd still love to see an authoritative answer, citing a court decision, memorandum, or even just an approved (or denied) case with these particular circumstances.