Absence of 10 months for N400 Spouse

[fpriya]

Hi all
We got our GC in 2012 through my employer. I became USC in 2018 but my wife couldn’t.
she went out of country from Sep 2021 to July 2022 to spend some time with her parents while I was still working here. We filed our joint taxes that year and we do have our primary residence in US since 2015.
Now she wants to apply for USC but I am not sure when will she be able to apply ?
Any ideas ?

Thanks

[newacct]

An absence of between 6 months and 1 year is presumed to break continuous residence, but this presumption can be overcome with strong evidence of ties to the US. See 12 USCIS-PM D.3(C)(1).

So the possibilities are:

• She overcomes the presumption of interrupting continuous residence, which means she has had continuous residence the whole time she has had her green card, which is way over 5 years, so she can apply for naturalization right now, or
• She doesn't overcome the presumption of interrupting continuous residence, in which case she can apply 4 years and 6 months after her return (since by that point, all her absences in the preceding 5 years would be less than 6 months, including the less-than-6-month last part of her 10-month absence). But, since you have been a USC for more than 3 years, and I'm assuming that you guys have been married for more than 3 years, she qualifies for naturalization under the 3-year rule, which means that she only needs to wait until 2 years and 6 months after her return, and this would be January 2025.

The problem is that you don't know which of these possibilities are true until she applies and the officer makes the determination. She can risk it and apply now and hope that her evidence will be strong enough to overcome the presumption of interrupting continuous residence. Or she can wait until January 2025 and apply under the 3-year rule which will work regardless of whether she interrupted continuous residence.

[fpriya]

An absence of between 6 months and 1 year is presumed to break continuous residence, but this presumption can be overcome with strong evidence of ties to the US. See 12 USCIS-PM D.3(C)(1).

So the possibilities are:

• She overcomes the presumption of interrupting continuous residence, which means she has had continuous residence the whole time she has had her green card, which is way over 5 years, so she can apply for naturalization right now, or
• She doesn't overcome the presumption of interrupting continuous residence, in which case she can apply 4 years and 6 months after her return (since by that point, all her absences in the preceding 5 years would be less than 6 months, including the less-than-6-month last part of her 10-month absence). But, since you have been a USC for more than 3 years, and I'm assuming that you guys have been married for more than 3 years, she qualifies for naturalization under the 3-year rule, which means that she only needs to wait until 2 years and 6 months after her return, and this would be January 2025.

The problem is that you don't know which of these possibilities are true until she applies and the officer makes the determination. She can risk it and apply now and hope that her evidence will be strong enough to overcome the presumption of interrupting continuous residence. Or she can wait until January 2025 and apply under the 3-year rule which will work regardless of whether she interrupted continuous residence.

Thank you,
yes we have been married since before we got our GC, so I guess 3-year rule applies.
I was under the impression that I could apply 3 months before 5 years / 3 Years (i.e. 4 years 9 months or 2 years 9 months) but you mentioned 6 months earlier. Is this 6 months something new ?

[newacct]

Thank you,
yes we have been married since before we got our GC, so I guess 3-year rule applies.
I was under the impression that I could apply 3 months before 5 years / 3 Years (i.e. 4 years 9 months or 2 years 9 months) but you mentioned 6 months earlier. Is this 6 months something new ?

No, it is not new. 4 years and 6 months is how long you have to wait after returning from an absence where you interrupted continuous residence and is unable to overcome the presumption, because at the point of 4 years and 6 months, all your absences in the past 5 years would be less than 6 months, and therefore, there was continuous residence for 5 years at that point.