Technical Question on N400 Filing (90-day early filing)

V

VisaNutz

Registered Users (C)
I was looking into the early filing requirements for N400 and the instructions got me thinking -

Here's is what the N400 instruction say:

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.


There are two separate requirements for naturalization eligibility -

1. Be a permanent resident for X years
AND
2. Have continuous residence for X years

Now, according the instructions, you can file up to 90 days before you meet the "continuous residence" requirement, and you MUST meet all other requirements AT THE TIME OF FILING.


Now, take this for example (5 year requirements)

: Joe has been a permanent resident for 7 years. However, he stayed outside of USA for 9 months on his 6th year. So, he broke the continuous residency requirement. Joe now meets the requirement 1 but not requirement 2. But one thing for sure is, on any day within the 90-day period immediately before he meets the requirement 2, he will also be meeting the requirement 1. So, he can file early given all other requirements are met.

Now, Here's John. John got his GC on May 5, 2007. He has not broken his continuous residence. So, he will meet requirement 2 on May 4, 2012. He will also meet requirement 1 on the same day (May 4, 2012).
If you read the instruction carefully, John is NOT eligible to file up to 90 days BEFORE May 4, 2012 because he will not have met the requirement 1 before May 4, 2012, and John MUST meet all other requirements AT THE TIME OF FILING, which also mean requirement no. 1.

If that is true, how is it that hundreds and hundreds of people here filed N400 before they even met requirement 1? We generally advise that you can file up to 90 days before your 5 year anniversary (or 3 year with usc wife). Is that wrong?

Gurus PLEASE help me clear up my confusion.
 
Last edited by a moderator:
Simply put, you can apply up to 90 days before you have obtained 5 years (or 3 years based on marriage to USC) of continuous residency as a LPR.
 
Bobby.. I know that is true in practice. But the provision that allows one to file early doesn't say that - it says up to 90 days immediately before meeting the "continuous residence" requirement, which is NOT the same as being an LPR for a the same period.
 
VisaNutz said:
Bobby.. I know that is true in practice. But the provision that allows one to file early doesn't say that - it says up to 90 days immediately before meeting the "continuous residence" requirement, which is NOT the same as being an LPR for a the same period.
Click to expand...

Here's what the provision (INA 334(a) 8 USC USC 1445) says:

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.


The requirement of LPR status is concurrent to the provision and the notion of "continuous residence" only applies to LPR, so by deduction you can file up to 90 days before you have meet 5 or 3 year of continuous residency as a LPR.
 
I think you can read it somewhat loose. I mean if you are continue resident for 4 + 9 you MUST be a green card holder for the same period of time. On other hand you can be GC holder for 10 years, but still not meet 4 + 9 (well, I'm exaggerating here, of course, but you know.. :) ).

Generally CIS rules are full of exceptions and uncertainties good lawyer can play with. So... If you are here 4 + 9 (or 2 + 9) feel free to file! Lol!
 
Answer is in your question

Continuous residence requirement is 36 months out of 5 years after becoming LPR. In the sense that, one needs maintain residency little over 7 months every year 1) to maintain LPR status and 2) to be eligible for naturalization.
In example 1 above, the residency was broken in sixth year, and in example 2, there is no break in residency requirement. In both cases, 4 year 9 months of continuous residency made them eligible for filing naturalization (because both satisfied 36 months of residency in LPR status for 5 years).
for the guy in example 1 situation: if nine months out of country spanned over two years, this guy can file for citizenship in the current year. provided rest of residency requirements such as continued residency in same state 90 days prior to filing, etc are met. in short, "otherwise" eligible.
 
VisaNutz said:
Bobby.. I know that is true in practice. But the provision that allows one to file early doesn't say that - it says up to 90 days immediately before meeting the "continuous residence" requirement, which is NOT the same as being an LPR for a the same period.
Click to expand...

Hi VisaNutz,

very astute observation! I actually thought exactly the same that you were thinking when I first looked into this subject, but here's why I think its ok to file 90 days before the 5 year:

I completely agree with your reasoning, that if you follow the "Guide to Naturalization", technically, you should not be able to file 90 days prior to the 4 years.

BUT: the "Guide to Naturalization" is not the law that governs whether you are eligible or not -- 8CFR is.

8CFR 316.2 sets forth the requirements, including 5 years of continuous residence, which is detailled in 8CFR 316.5. Then, 8CFR 334.2(b) sets forth that filing 90 days prior to meeting the continuous residence is ok.

Now, the interesting fact here: 8CFR316.2 or 8CFR316.5 never talks about the "5 year green card requirement" that the guide to naturalization mentions -- it only talks about continuous residence requirement of 5 years. Which makes sense -- in a way, the "must have GC for 5 years" is implied if you have 5 years of continuous residence.

So, my opinion is that 8CFR316.2 and 8CFR334.2(b) establish all requirements for naturalization, and they don't mention 5 years of having a GC, but only 5 years of continuous residence on GC, and that filing 90 days before meeting that is ok.

Therefore, I think you can ignore whatever the "Guide to Naturalization" states.

The one thing I would do: when checking the box "5 years of permanent residence" on page 1 of N-400 (Part 2, Checkbox A), I would add to that "filing 90 days early per 8CFR334.2(b)", to clarify that you have not had your greencard for 5 years yet. (i.e. that you are not misrepresenting how long you have had your green card).

I really appreciate how literal you take these things -- so do I, the last think I want to do is make some technical error in the N-400 application. However, when reading the law, I think filing 90 days early (especially when clarifying it by the 5 year checkbox) is ok -- according to the law, you are permitted to file, and you annotated the checkbox to make it clear that it hasn't been quite 5 years yet, but that that's ok.

I'm curious what you think! Let me know if you find this reasoning satisfactory and if you will file early, or what your remaining concerns are (because if you have still concerns, maybe I should still have concerns, too).
 
eb2kid said:
Hi VisaNutz,

very astute observation! I actually thought exactly the same that you were thinking when I first looked into this subject, but here's why I think its ok to file 90 days before the 5 year:

I completely agree with your reasoning, that if you follow the "Guide to Naturalization", technically, you should not be able to file 90 days prior to the 4 years.

BUT: the "Guide to Naturalization" is not the law that governs whether you are eligible or not -- 8CFR is.

8CFR 316.2 sets forth the requirements, including 5 years of continuous residence, which is detailled in 8CFR 316.5. Then, 8CFR 334.2(b) sets forth that filing 90 days prior to meeting the continuous residence is ok.

Now, the interesting fact here: 8CFR316.2 or 8CFR316.5 never talks about the "5 year green card requirement" that the guide to naturalization mentions -- it only talks about continuous residence requirement of 5 years. Which makes sense -- in a way, the "must have GC for 5 years" is implied if you have 5 years of continuous residence.

So, my opinion is that 8CFR316.2 and 8CFR334.2(b) establish all requirements for naturalization, and they don't mention 5 years of having a GC, but only 5 years of continuous residence on GC, and that filing 90 days before meeting that is ok.

Therefore, I think you can ignore whatever the "Guide to Naturalization" states.

The one thing I would do: when checking the box "5 years of permanent residence" on page 1 of N-400 (Part 2, Checkbox A), I would add to that "filing 90 days early per 8CFR334.2(b)", to clarify that you have not had your greencard for 5 years yet. (i.e. that you are not misrepresenting how long you have had your green card).

I really appreciate how literal you take these things -- so do I, the last think I want to do is make some technical error in the N-400 application. However, when reading the law, I think filing 90 days early (especially when clarifying it by the 5 year checkbox) is ok -- according to the law, you are permitted to file, and you annotated the checkbox to make it clear that it hasn't been quite 5 years yet, but that that's ok.

I'm curious what you think! Let me know if you find this reasoning satisfactory and if you will file early, or what your remaining concerns are (because if you have still concerns, maybe I should still have concerns, too).
Click to expand...

The highlighted parts explain the issue. You are 100% correct about the statement - BUT: the "Guide to Naturalization" is not the law that governs whether you are eligible or not -- 8CFR is. .. I like it a lot!
 
VisaNutz said:
The highlighted parts explain the issue. You are 100% correct about the statement - BUT: the "Guide to Naturalization" is not the law that governs whether you are eligible or not -- 8CFR is. .. I like it a lot!
Click to expand...


Great to hear you liked my reasoning.

If you look at my past messages, I actually asked the very same question a while ago, and everybody told me "no its ok to do it" but nobody gave me a satisfactory answer that really addressed why it was ok, nor did anyone seem to care or even appreciate the discrepancy that I noted.

Your posting shows that you noted the exact same, very subtle contradiction that I had found (USCIS publications contradicting common practice by N-400 filers & USCIS).

I think reading just the law, it is very clear that there is no "5 year greencard requirement". I think the USCIS guide only adds that so that it makes it easier for people to understand (whereas when reading it literally, it actually creates confusion, like to you and to me).

So since 8CFR clearly allows us to file 90 days before, and as long as we don't misrepresent how long we had the greencard (e.g. I think checking the 5 year box without adding a disclaimer "filing 90 days early" might be construed as misrepresentation, which is why I feel better if i add that disclaimer to the option behind the checkbox), we should be all set.

Thanks.
 
olddude said:
Continuous residence requirement is 36 months out of 5 years after becoming LPR. In the sense that, one needs maintain residency little over 7 months every year 1) to maintain LPR status and 2) to be eligible for naturalization.
In example 1 above, the residency was broken in sixth year, and in example 2, there is no break in residency requirement. In both cases, 4 year 9 months of continuous residency made them eligible for filing naturalization (because both satisfied 36 months of residency in LPR status for 5 years).
for the guy in example 1 situation: if nine months out of country spanned over two years, this guy can file for citizenship in the current year. provided rest of residency requirements such as continued residency in same state 90 days prior to filing, etc are met. in short, "otherwise" eligible.
Click to expand...

you mean 30 months out of the 5 years ryt ? half the time of 5 years, 2.5 years or 30 months....

or is it 36 months
 
eb2kid said:
Great to hear you liked my reasoning.

If you look at my past messages, I actually asked the very same question a while ago, and everybody told me "no its ok to do it" but nobody gave me a satisfactory answer that really addressed why it was ok, nor did anyone seem to care or even appreciate the discrepancy that I noted.

Your posting shows that you noted the exact same, very subtle contradiction that I had found (USCIS publications contradicting common practice by N-400 filers & USCIS).

I think reading just the law, it is very clear that there is no "5 year greencard requirement". I think the USCIS guide only adds that so that it makes it easier for people to understand (whereas when reading it literally, it actually creates confusion, like to you and to me).

So since 8CFR clearly allows us to file 90 days before, and as long as we don't misrepresent how long we had the greencard (e.g. I think checking the 5 year box without adding a disclaimer "filing 90 days early" might be construed as misrepresentation, which is why I feel better if i add that disclaimer to the option behind the checkbox), we should be all set.

Thanks.
Click to expand...

May be it's a secret weapon in their arsenal - so if they need to deport anyone who hasn't done anything wrong otherwise, they will use this against him - ha ha.. just a joke....

Anyway, how do you like being the way you are? Do you sometimes think life would be much easier you weren't this "analyzing" and "logical"?
 
VisaNutz said:
May be it's a secret weapon in their arsenal - so if they need to deport anyone who hasn't done anything wrong otherwise, they will use this against him - ha ha.. just a joke....

Anyway, how do you like being the way you are? Do you sometimes think life would be much easier you weren't this "analyzing" and "logical"?
Click to expand...

There have been several times where my thorough analysis has actually been very helpful, so I'm glad about that. Also, in my job (software engineer), being meticulous is extremely helpful in terms of writing high quality code :). What kind of job do you do?

VisaNutz, I browsed some of your old postings (filing I-751 several years ago), it seems like you were eligible to apply for citizenship a long time ago, so from your question, I take it you applied 90 days before, and now you are unsure whether it was ok or not?
 
eb2kid said:
I completely agree with your reasoning, that if you follow the "Guide to Naturalization", technically, you should not be able to file 90 days prior to the 4 years.
Click to expand...
You mean 90 days before 5 years as GC not 4 years.
eb2kid said:
BUT: the "Guide to Naturalization" is not the law that governs whether you are eligible or not -- 8CFR is.
Click to expand...

You're reading too much into what the guide says. What the guide means is that 5 years as LPR must be met at time of application. What you fail you to realize is what they mean by "time of application". Time of application in the guide refers to your interview, not the actual time you send in your application.
 
can any one clarify this ?

Originally Posted by olddude
Continuous residence requirement is 36 months out of 5 years after becoming LPR. In the sense that, one needs maintain residency little over 7 months every year 1) to maintain LPR status and 2) to be eligible for naturalization.
In example 1 above, the residency was broken in sixth year, and in example 2, there is no break in residency requirement. In both cases, 4 year 9 months of continuous residency made them eligible for filing naturalization (because both satisfied 36 months of residency in LPR status for 5 years).
for the guy in example 1 situation: if nine months out of country spanned over two years, this guy can file for citizenship in the current year. provided rest of residency requirements such as continued residency in same state 90 days prior to filing, etc are met. in short, "otherwise" eligible.

you mean 30 months out of the 5 years ryt ? half the time of 5 years, 2.5 years or 30 months....

or is it 36 months
 
sreeleshk said:
Originally Posted by olddude
Continuous residence requirement is 36 months out of 5 years after becoming LPR. In the sense that, one needs maintain residency little over 7 months every year 1) to maintain LPR status and 2) to be eligible for naturalization.
In example 1 above, the residency was broken in sixth year, and in example 2, there is no break in residency requirement. In both cases, 4 year 9 months of continuous residency made them eligible for filing naturalization (because both satisfied 36 months of residency in LPR status for 5 years).
for the guy in example 1 situation: if nine months out of country spanned over two years, this guy can file for citizenship in the current year. provided rest of residency requirements such as continued residency in same state 90 days prior to filing, etc are met. in short, "otherwise" eligible.

you mean 30 months out of the 5 years ryt ? half the time of 5 years, 2.5 years or 30 months....

or is it 36 months
Click to expand...

Olddue was referring to continuous residence, not physical presence. However, he incorrectly assumed that keeping continuous residence means being present in the US for a predetermined amount of time each year (7 months) since being outside US for more than 6 months at a time presumes break in continuous residence.
 
olddude said:
Continuous residence requirement is 36 months out of 5 years after becoming LPR. In the sense that, one needs maintain residency little over 7 months every year 1) to maintain LPR status and 2) to be eligible for naturalization.
Click to expand...

Residency ties need to be kept throughout the year, not just for 7 months of the year. For example, if a LPR decides to work in a foreign country with a non US company for 3 months every year and doesn't keep any US residential during those 3 months, the LPR eventually risks loosing LPR let alone not be eligible for naturalization. Continuous residency is not solely determined by presence in US, whereas physical presence is.
 
Is work at all an issue in the above example? let's say one is a school teacher who rents an apartment 9 months of the year in Iowa and in the summer returns to her native Iceland (summers are nice there, 65F :eek:). Then, she returns to Iowa in the fall, rents another apartment for 9 months, and continues.
 
PerpetualGC said:
Is work at all an issue in the above example? let's say one is a school teacher who rents an apartment 9 months of the year in Iowa and in the summer returns to her native Iceland (summers are nice there, 65F :eek:). Then, she returns to Iowa in the fall, rents another apartment for 9 months, and continues.
Click to expand...
That is fine. Her work and travel habits are consistent with being a US resident ... although she spends 3 months outside the US each year, she still regularly returns to work in the US according to requirements of the US job, and presumably maintains ties to her job while away for 3 months (i.e. she wasn't quitting the job in the summer, she was just taking an authorized break).
 
You must log in or register to reply here.
Top