Eligibility for US Citizenship

[Michael2017 368]

Hi,

 

my wife got her green card via the lottery in 2014. She applied for her re-entry permit at her first visit. She was granted a 2 years re-entry permit which expired

in October 2018. She had to remain in Europe for some time after getting the re-entry permit has she had to finish her master degree in law.

 

After the re-entry permit expired, she moved to the US full time.

 

During the 2 years, she managed to be in the US frequently, however, one duration was 8 months in between coming back, and over the 6 months.

 

Do the periods of the re-entry permit count towards the 5 year, or does the period start after the re-entry permit has expired?

 

Thanks for the help.

 

 

[geowrian 22,337]

The time spent abroad does not contribute towards the physical presence requirements. The re-entry permit only creates a presumption that she is not intending to abandon permanent residency due to the length of the time spent abroad. For the 5 year rule, you need at least 30 months of physical presence within the past 5 years.

 

The biggest issue is that she is presumed to have (and likely has) broken continuous residency. As such, she must establish continuous residency for 5 years since her return to the US.

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

Edited March 20, 2018 by geowrian

[Gamboli 48]

Was she renting, paying mortgage, etc during the period of her absence from the U.S? Those are some of the factors they will take into consideration as well. Status of your residency while filing taxes is a very big one too. If she can establish that her absence was temporary and she didn't abandon her residency for the time she spent outside of the country it might count for something. 

 

It's best if you consult an immigration attorney to give you a tailored response specific to your situation. 

[Michael2017 368]

10 hours ago, Gamboli said:

Was she renting, paying mortgage, etc during the period of her absence from the U.S? Those are some of the factors they will take into consideration as well. Status of your residency while filing taxes is a very big one too. If she can establish that her absence was temporary and she didn't abandon her residency for the time she spent outside of the country it might count for something. 

 

It's best if you consult an immigration attorney to give you a tailored response specific to your situation. 

No, she was not renting or paying mortage. She had a mailing address in the US and studied in Europe. She also worked in Europe. She has filed taxes always as resident of the US, being temporarily abroad. However, it seems that the residence requirement for the citizenship was broken, but she has clearly not abandon her residency, especially by filing taxes as resident, keeping a mailing address and having a re-entry permit. CBP admitted her always without problem, which is proof of valid residency. However, the 6 months period was jeopardized as she was outside usa for slightly longer once, 8 months.

[Gamboli 48]

3 minutes ago, Michael2017 said:

No, she was not renting or paying mortage. She had a mailing address in the US and studied in Europe. She also worked in Europe. She has filed taxes always as resident of the US, being temporarily abroad. However, it seems that the residence requirement for the citizenship was broken, but she has clearly not abandon her residency, especially by filing taxes as resident, keeping a mailing address and having a re-entry permit. CBP admitted her always without problem, which is proof of valid residency. However, the 6 months period was jeopardized as she was outside usa for slightly longer once, 8 months.

Unfortunately, I think that might have broken continuous residency. On Naturalization form you're expected to enter your departure and arrival dates with the day count. But I'd still suggest you speak with an immigration lawyer as well, if you're in hurry. Many of them offer free consultation before taking you on as a client. 

[Brother Hesekiel 2,236]

I have a poor opinion of government workers. In my not-so-humble opinion, folks who work for the SSA and the DMV are in large part dumb as a piece of cardboard, and about as useful.

That doesn't apply to I.O.s though. They are actually quite smart.

 

A Kraut who is a Green Card holder is not allowed to study in Germany. That would imply being a RESIDENT of Germany, as she can't be an international student in her country of citizenship. That's the first thing that will caught any I.O.s eye who is adjudicating her N-400.

 

The continuous residency is not broken when a Green Card holder is absent for less than 365 days in a row. But any longer absence from the United States, all of which need to be documented, will be subject to scrutiny. She doesn't want that.

 

my thoughts to you is that she doesn't file her N-400 before she has 5 years of clean residency, without any significant absence. She can file as soon as she has been married to you for 3 years minus 90 days.

Edited March 22, 2018 by Brother Hesekiel

[Michael2017 368]

5 minutes ago, Brother Hesekiel said:

I have a poor opinion of government workers. In my not-so-humble opinion, folks who work for the SSA and the DMV are in large part dumb as a piece of cardboard, and about as useful.

That doesn't apply to I.O.s though. They are actually quite smart.

 

A Kraut who is a Green Card holder is not allowed to study in Germany. That would imply being a RESIDENT of Germany, as she can't be an international student in her country of citizenship. That's the first thing that will caught any I.O.s eye who is adjudicating her N-400.

 

The continuous residency is not broken when a Green Card holder is absent for less than 365 days in a row. But any longer absence from the United States, all of which need to be documented, will be subject to scrutiny. She doesn't want that.

 

my thoughts to you is that she doesn't file her N-400 before she has 5 years of clean residency, without any significant absence. She can file as soon as she has been married to you for 3 years minus 90 days.

A reason for a re-entry permit to be issued, is study abroad. This is exactly what we wrote as reason why she stays abroad.

She did not study in Germany but another EU country.

[geowrian 22,337]

With regard to continuous residency for naturalization, here's the specific section I was referring to in the link above from USCIS:

1. Absence of More than Six Months (but Less than One Year)

An absence of more than six months [more than 181 days but less than one year (less than 365 days)] during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship. ^[11]

 

An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence.

 

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence: ^[12]

 

•The applicant did not terminate his or her employment in the United States or obtain employment while abroad.

•The applicant’s immediate family remained in the United States.

•The applicant retained full access to his or her United States abode.

Edited March 22, 2018 by geowrian

[CarlHamilton 252]

22 hours ago, Brother Hesekiel said:

 

A Kraut who is a Green Card holder is not allowed to study in Germany.

I don't think that's the preferred nomenclature, dude. 

[Brother Hesekiel 2,236]

On 3/22/2018 at 3:03 PM, Michael2017 said:

A reason for a re-entry permit to be issued, is study abroad. This is exactly what we wrote as reason why she stays abroad.

She did not study in Germany but another EU country.

That changes things to the better.