Filing N-400 90 day prior (GC via Marriage - 3 year rule)

[BritishGuy]

My wife has been a Permanent Resident (Green Card holder) since Feb-02-2012. She acquired her Green Card though me (US Citizen). She is intending to submit her N-400 for US Citizenship soon. There are a few questions that we have.

We understand that she needs to have had her Green Card for 3 years (if applying via marriage to a USC). The 3 year anniversary is on Feb-02-2015 (as per USCIS calculator).

As part of my job I do travel a fair bit and she sometimes accompanies me on the trip. I will add that she has NEVER been out of the country for more than 6 months (180 days). She has NOT broken continuous residence.

We recognize that she can file 90 days prior to her 3 year anniversary (10-Nov-2014), BUT (and here it is), on 10-Nov-2014 she will have accrued 517 days in the US. She will not have accrued 548 days (1.5 years). Can she still submit her N-400 on 10-Nov-2014 or will she have to wait another 31 days (548 days - 517 days) to submit the N-400 (hence accruing the complete 548 days PRIOR to applying? Waiting the extra 31 days will make her application date 11-Dec-2014.

Thanks for all replies in advance.

 

[newacct]

Yes, she needs to accrue 1.5 years first.

 

[Jackolantern]

As part of my job I do travel a fair bit and she sometimes accompanies me on the trip. I will add that she has NEVER been out of the country for more than 6 months (180 days). She has NOT broken continuous residence.

Actually, she may have broken continuous residence. They can look beyond the fact of having or not having any absences of 6 months, and find that continuous residence was broken based on the entire travel pattern and lack of sufficient ties to the US. The 6 month thing only means that they don't need to find any other reason to draw a conclusion of breaking continuous residence if the applicant has any trips longer than that.

We recognize that she can file 90 days prior to her 3 year anniversary (10-Nov-2014), BUT (and here it is), on 10-Nov-2014 she will have accrued 517 days in the US. She will not have accrued 548 days (1.5 years). Can she still submit her N-400 on 10-Nov-2014 or will she have to wait another 31 days (548 days - 517 days) to submit the N-400 (hence accruing the complete 548 days PRIOR to applying? Waiting the extra 31 days will make her application date 11-Dec-2014.

Physical presence is counted only as of the filing date; dates spent in the US after applying do not add to the physical presence count. So she will have to wait to accumulate the 548 days before applying, and it is wise to wait to accumulate an extra 5 to 10 days to avoid problems with USCIS miscounting the days. Yes, they do sometimes miscount, resulting in delays or denials in close-cut cases, so it is advisable to wait an extra week or two rather than having to spend more time and money fighting them later over this issue.

 

[BritishGuy]

We've had our property in the US all along as we've genuinely been living in it. It hasn't been abandoned or rented etc. Bills, mortgage, HOAs, Health Insurance, Bank accounts, and now schools (for the littlen, now she's in school), are/have been all in place. So I'm assuming (though an 'assumption' can be only that), that the continuous residence part should suffice - though your point is duly noted Jackolantern.

We intend to wait about 10 days past the date we can file to put in the paperwork. We've made the odd error counting the days, heaven knows USCIS folks are human and can (and sometimes do) make the day count mistake. I'd rather not get caught up in that. The funny this is, I went to see an attorney for this earlier in the week and he seemed sure that my wife can apply at the -90 day mark and the days running up to 3 years count. I was pretty certain he was wrong hence came here to confirm my thoughts. I cannot believe I paid to see him either. Oh well, y'live and learn.