Temporary stay - Continous residency requirement.

[iamwhatiam80 92]

Hello fellow vjer's

I am a US citizen and my wife is a GC holder. She will be residing outside US for about 5 months and 1 week as she will be delivering our baby their.

When she applies for naturalization, will this temporary stay affect her naturalization process ?

As always, you guys are the best!!!!

[JohnR! 5,495]

She'll have to list it as time spent outside the US. It'll count towards the 30-month requirement; and to determine if it will affect her application negatively you'll need to do the math, and consider any other absences during the required period.

check out this link: http://www.uscis.gov/citizenship/learners/learn-about-naturalization

Good luck!

Edited February 3, 2015 by JohnR!

[iamwhatiam80 92]

I just read the M-476 complete guide and I think i got my answer.

http://www.uscis.gov/sites/default/files/files/article/M-476.pdf

Page 18 has my answer. Trips of less than 6 months, will not affect her continuous residency.

[JimmyHou 610]

I just read the M-476 complete guide and I think i got my answer.

http://www.uscis.gov/sites/default/files/files/article/M-476.pdf

Page 18 has my answer. Trips of less than 6 months, will not affect her continuous residency.

As long as the stay is clearly temporary and ties to the US are maintained, then you're right; a stay of less than 6 months should have no impact as long as it doesn't push you over the limit of the number of days you're allowed to be outside the US. However, even trips of less than 6 months can cause problems if it looks like your move was initially going to be permanent. For example, if you sell your house and card and cancel your credit cards, utilities, memberships, etc. and you move abroad but then you change your mind and come back withing 6 months, you could face some tough questions.

In your case, this sounds like a temporary trip with every intent to remain a permanent resident. Note that if you are a US citizen, your child may become a US citizen at birth and will require a US passport from the US consulate in the country of birth.

From the USCIS policy manual:

C. Breaks in Continuous Residence​

​

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.​ [9]

​

•Absences of more than 6 months but less than one year; and​

​

•Absences of one year or more. ​

​

In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence.​

[huy_le 32]

Trips of more than 6 months will negatively affect the process and sometimes even means abandonment of greencard. However, it is wrong to assume that trips of less than 6 months will not affect the process at all. We all know that to be eligible for citizenship, one must stay in the US 18 out of 36 months (for marriage-based), so even if your wife will not be outside of US for more than 6 months, you also want to make sure that the total time she is physically in the US must be 18 or more months.

I just read the M-476 complete guide and I think i got my answer.

http://www.uscis.gov/sites/default/files/files/article/M-476.pdf

Page 18 has my answer. Trips of less than 6 months, will not affect her continuous residency.

[iamwhatiam80 92]

As long as the stay is clearly temporary and ties to the US are maintained, then you're right; a stay of less than 6 months should have no impact as long as it doesn't push you over the limit of the number of days you're allowed to be outside the US. However, even trips of less than 6 months can cause problems if it looks like your move was initially going to be permanent. For example, if you sell your house and card and cancel your credit cards, utilities, memberships, etc. and you move abroad but then you change your mind and come back withing 6 months, you could face some tough questions.

In your case, this sounds like a temporary trip with every intent to remain a permanent resident. Note that if you are a US citizen, your child may become a US citizen at birth and will require a US passport from the US consulate in the country of birth.

From the USCIS policy manual:

C. Breaks in Continuous Residence​

​

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.​ [9]

​

•Absences of more than 6 months but less than one year; and​

​

•Absences of one year or more. ​

​

In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence.​

Thank you JimmyHou for your detailed response. Yes I will be doing a CRBA for the baby and yes she clearly intends to remain a PR. She can prove all her ties especially that fact that her spouse was in US in that time.

USCIS is not really clear on the absences of less than 6 months. There is no detailed explanation on that rule.

[huy_le 32]

There is the physical presence requirement of at least 18 months out of 3 years immediately preceding her citizenship application.

Thank you JimmyHou for your detailed response. Yes I will be doing a CRBA for the baby and yes she clearly intends to remain a PR. She can prove all her ties especially that fact that her spouse was in US in that time.

USCIS is not really clear on the absences of less than 6 months. There is no detailed explanation on that rule.

[Sebas&Lily 3]

Trips of more than 6 months will negatively affect the process and sometimes even means abandonment of greencard. However, it is wrong to assume that trips of less than 6 months will not affect the process at all. We all know that to be eligible for citizenship, one must stay in the US 18 out of 36 months (for marriage-based), so even if your wife will not be outside of US for more than 6 months, you also want to make sure that the total time she is physically in the US must be 18 or more months.

We applied for Citizenship very confident like, with the 18 out of 36 month rule in our heads, turns out it's not true. Wife still got denied. I'll quote USCIS:

3. Eligibility after Break in Residence​

​

An applicant who is required to establish ​continuous​ residence for at least five years​ ^[14] See INA 316(a). and whose application for naturalization is denied for an absence of one year or longer​,​ may apply for naturalization four years and one day after returning to the United States to resume permanent residence.​ An applicant who is subject to the three-year continuous residence ​requirement​ ^[15] See INA 319(a). may apply two years and one day after returning to the United States to resume permanent residence.​ ^[16] See 8 CFR 316.5©(1)(ii).

From this link: http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

[iamwhatiam80 92]

There is the physical presence requirement of at least 18 months out of 3 years immediately preceding her citizenship application.

yes i am aware of that. Thats not my worry. My worry is the Continuous requirement rule.

[iamwhatiam80 92]

We applied for Citizenship very confident like, with the 18 out of 36 month rule in our heads, turns out it's not true. Wife still got denied. I'll quote USCIS:

3. Eligibility after Break in Residence​

​

An applicant who is required to establish ​continuous​ residence for at least five years​ ^[14] See INA 316(a). and whose application for naturalization is denied for an absence of one year or longer​,​ may apply for naturalization four years and one day after returning to the United States to resume permanent residence.​ An applicant who is subject to the three-year continuous residence ​requirement​ ^[15] See INA 319(a). may apply two years and one day after returning to the United States to resume permanent residence.​ ^[16] See 8 CFR 316.5©(1)(ii).

From this link: http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

I am sorry to hear about that but what I think happened in your wife's case was that even though she was good with the physical requirement rule, she may have not had the continuous requirement rule satisfied, in other words she was absent from the US for 6 months or more and that broke it.

[Sebas&Lily 3]

Hmm, she was out of the country for 11months in 2011 and I think 1month in 2010. She returned in January 2012, we applied January 2014 (2 years and a few days later), and got denied. It has been 3 years now since our return in 2012 but we are still scared to re-apply. I don't know what to do.

[iamwhatiam80 92]

Hmm, she was out of the country for 11months in 2011 and I think 1month in 2010. She returned in January 2012, we applied January 2014 (2 years and a few days later), and got denied. It has been 3 years now since our return in 2012 but we are still scared to re-apply. I don't know what to do.

I dont think it will be a problem now because the clock got reset in January 2012 and its now Feb 2015. Provided in between she did not go out on trips for more than 6 months.

You guys should be good. But it does not hurt to get a lawyer's advice on this.

[Sebas&Lily 3]

That's true, I might do that, we'll see Thanks and good luck to you!