Which rule applies for naturalizarion?

[schollon]

When a person is applying for citizenship based on marriage to a U.S. citizen and they have been married over 5 years, does the 3 year or 5 year measure apply?

My wife was granted permanent residency in 1999. I was assigned by my company to Mexico from 2002 to 2005. During that time we were never out of the U.S. for more than 6 months.

Now were being told that the 5 year rule applies which is the stricter of the two standards? If it is indeed the 5 year rule, we will need to refile in august.

[schollon]

Any suggestions?

We have a follow up meeting with the USCIS people next week and I was hoping for some insight.
They've sent a N-14 regarding my overseas employment -or so were told.

[PraetorianXI]

How big were your absences from the USA? you may have broken your continuous residency for Naturalization purposes...

The rule has to do with whether you obtained the GC through your spouse who is an US citizen and it has to do with how long you have been a resident, not how long you have been married. But if you broke your residency, then you would have to use the "2 years + 1 day" rule, which allows you to file for residency 2 years + 1 day after your last entry to the USA.

[schollon]

more info

We werw never absent from the U.S. for more than a 6 month stretch without returning. The longest uninterrupted period was 5 months and 2 weeks approximately. Often we returned 3 time per year.The times we were in the U.S. varied from a few days to a week and a half.

I was always on the U.S. payroll of a U.S. Corporation while we were abroad and payroll taxes were withheld accordingly.

The individual processing the petition has already acknowledged that continuous residency was not broken. He maintains that the 5 year rule (not 3) applies and that she needed to be physically present 30 months rather than 18.
We'll have been in Texas 2 years next month.

[PraetorianXI]

Well, was the Green Card obtained through marriage or not? and has this person been an US Permanent Resident for 3 years? Being present 18 months in the USA? that is what the rule should be.

[schollon]

Thanks again for your help and insight on this.
Yes, the GC was obtained through marriage to me- 10 years in December.
Permanent residency for the last 8 years based on that marriage.

The way it's being explained is that since we did not apply after the FIRST three years, that measure does not apply. Beyond that time it is moot- or so we're told.
After that period, the officials claim, it is the same as any other applicant: 5 years residency/30 months physical presence.

Sorry I come off as dim about this. It's really frustrating since it doesn't appear to be written that way.

Strangely, the processor is pushing very hard for us to withdraw the petition. Seems like it is either borderline incorrect or he wants to avoid some paperwork.

[schollon]

I should clarify: They a saying the LAST 5 years (prior to applying for citizenship)out of 8 are the ones that matter. Nothing prior to that.

[schollon]

Some clarification

The processor is citing INA SS 316.2 and 316.5 as the basis for denial.
I believe that 319 is the appropriate section of the code.
Anyone have an idea.

Thanks Praetorian for your assistance.