Am I qualified?

[xhm 1]

I became a PR in Feb 2005 and married a US citizen in May 2006. I have been living in the US until Oct. 2008 when my company sent me on a foreign assignment aboard. My family joined me on the assignment overseas. However, we visited the US every six months. Until now, I have one overseas stay over 180 days (182 days, not knowing USCIS uses 30 days/month standard). I plan to submit my N400 application during my next visit to the US in May 2010. My questions are:

1. Does "the 18 months physical presence requirement " mean that for the most recent 3 years proceding the application date I have to have 18 months live in the US or it means as long as I have lived in the US for 18 months (not necessarily in the last 3 years), I can apply.

2. Should I use the 5 year permanent resident status or 3 years of marriage status to apply? What are the pros and cons?

3. Would the 182 day trip be a big problem, since it is over 6 months by USCIS definition? I have filed tax in the last 5 years. We have a house in the US (under my husband name). Both my husband and son are US citizens. What eles are needed to show the ties to the US?

4. Since I need to travel after submission of the N400 application, I would like to the know if the FP date is flexible on the FP notice. (Read some posts in the forum that the FP notice gives a specific FP date, but it also allows the applicant to have the FP completed in the following weeks after the specific date until they consider you have abandon the case. Is this true?).

5. Can I reschedule FP and interview dates?

Many thanks to your kind help!

[CaptainPenguin 5]

I became a PR in Feb 2005 and married a US citizen in May 2006. I have been living in the US until Oct. 2008 when my company sent me on a foreign assignment aboard. My family joined me on the assignment overseas. However, we visited the US every six months. Until now, I have one overseas stay over 180 days (182 days, not knowing USCIS uses 30 days/month standard). I plan to submit my N400 application during my next visit to the US in May 2010. My questions are:

1. Does "the 18 months physical presence requirement " mean that for the most recent 3 years proceding the application date I have to have 18 months live in the US or it means as long as I have lived in the US for 18 months (not necessarily in the last 3 years), I can apply.

2. Should I use the 5 year permanent resident status or 3 years of marriage status to apply? What are the pros and cons?

3. Would the 182 day trip be a big problem, since it is over 6 months by USCIS definition? I have filed tax in the last 5 years. We have a house in the US (under my husband name). Both my husband and son are US citizens. What eles are needed to show the ties to the US?

4. Since I need to travel after submission of the N400 application, I would like to the know if the FP date is flexible on the FP notice. (Read some posts in the forum that the FP notice gives a specific FP date, but it also allows the applicant to have the FP completed in the following weeks after the specific date until they consider you have abandon the case. Is this true?).

5. Can I reschedule FP and interview dates?

Many thanks to your kind help!

Hello XHM and welcome to the VJ forums,

I am not an expert on all the topics you listed but I will go ahead and answer the questions that I do know the answers to.

1. The physical presence requirement is for the last 3/5 years going back from the date of application. So if applying based on three years you need to have been inside the US for 18 months, or 36 months when applying based on the 5 years.

2. Generally speaking when you apply based on the 3 years they will scrutinize your family life more closely especially ties to the country and your husband.

3. This is a direct quote from M-476 The Guide to Naturalization:

Continuous Residence

“Continuous residence” means that you have not left the United States for a long period of time. If you leave the United States for too long, you may interrupt your continuous residence.

What if I was outside the United States between 6 and 12 months?

If you leave the United States for more than 6 months, but less than 1 year, you have broken or disrupted your continuous residence unless you can prove otherwise. Read the “Document Checklist” in the back of this Guide to find out what information you must give to prove you did not break your continuous residence.

And this is what it says in the back of the guide as part of the checklist section:

If you have taken any trip outside the United States that lasted six months or more since becoming a Permanent Resident, send evidence that you (and your family) continued to live, work and/or keep ties to the United States, such as:

An IRS tax return “transcript” or an IRS-certified tax return listing tax information for the last five years (or for the last three years if you are applying on the basis of marriage to a U.S. citizen).

Rent or mortgage payments and pay stubs.

If you have a dependent spouse or children who do not live with you, send:

Any court or government order to provide financial support; and

Evidence of your financial support (including evidence that you have complied with any court or government order), such as:

• Cancelled checks,

• Money and receipts,

• A court or agency printout of child support payments,

• Evidence of wage garnishments,

• A letter from the parent or guardian who cares for your children.

4/5. You will get a date appointed to you, but you can always reschedule. However remember that it has been reported that sometimes they can throw a fuss about it.

Just based on personal experience with friends and family, sometimes they do take in consideration what kind of work you do outside of the US. If you are on a foreign mission (sent out of the country by a US employer or working on a cruise ship for instance) they might not consider that to actually count as out of the country. However, if you simply have a job in a different country with a foreign employer that will count as time out.

Remember to verify everything that is being said here, these forums are awesome to get a good idea of how things work but sometimes when you need specific answers just go ahead and call the USCIS help line. They have been very good with answering questions when it comes to my case, good luck.

[nigel 7]

CaptainPenguin..That was a good stab in trying to help the O.P

I must pick up though... it's 30 mths 50% physical presence requirement for P.R applications based on 5 yrs and not 36mths..

The Poster has a complex case going on here and not for a public forum such as this... and i feel it's best for him/her to get a Immigration Lawyer and not just "any Lawyer".

A Lawyer who deals with case's of "abbandonment"....If/when the O.P. speaks to a lawyer they should ask the question to them of... Have they ever dealt with abbandonment cases? and if so what is there track record? before you hire them...

I know one us immigration Lawyer who deals with such complex cases, pm me if you want such infomation...

[CaptainPenguin 5]

it's 30 mths 50% physical presence requirement for P.R applications based on 5 yrs and not 36mths

That was a mistake on my part, i stand corrected

Also thank you for encouraging OP to get professional help, I figured talking to the USCIS might be enough but if she can afford it, a lawyer is better.

[nigel 7]

That was a mistake on my part, i stand corrected

Also thank you for encouraging OP to get professional help, I figured talking to the USCIS might be enough but if she can afford it, a lawyer is better.

your welcome....

Yep.....This is not a D.I.Y job i feel as being outside the us for such long periods of time and only coming to the us every 6 mths can be kind of Risky & tricky..

I would advise the O.P. tho, if he/she don't work for a us company, or us Government to get a re-entry permit which will cover him/her upto 2 yrs away from the usa, but this will effect them down the line if/when they want to become usc.....2yrs and 1 day rule if married to a usc or 4 yrs 1 day if not.

coming in the us every 6mths on your P.R Card he/she is running a risk of abbandonment of there P.R. status.

Not sure what is the chances of getting usc if he/she is not working for a us connection as above...

Again...this is defo for a Immigration Lawyer......and one that deals with abbandonment case's

[xhm 1]

Thank you guys very much for your kind advice. It seems I do have a rather complicated case here. Thanks for your time. xhm

[nigel 7]

Thank you guys very much for your kind advice. It seems I do have a rather complicated case here. Thanks for your time. xhm

Your welcome...

Do yourself a favor though...

If you take long trips outside the us look into getting a re-entry permit I- 131 this will carry you over a bit up-to 2 yrs

as even though you have got a us home, bills, filled taxes etc, don't just take all that for granted, the last thing you want is being accused of

abandonment of your P.R. status.

If you want to move Forward with your N-400 usc application then seek for a immigration Lawyers advice, and again not just "any" Immigration Lawyer,

a Lawyer who deals with "abandonment" cases.... one of the first questions you should ask that Lawyer is.....have you dealt with abandonment issues?

and if so what is your track record?

I wish you all the best..

Edited March 17, 2010 by nigel