Consequences of (Expected) Breaks in Continuous Residence

[AKN2 49]

Hello, VJers!

So, I got my 10-year marriage-based GC and entered the US on 09-28-2023. I will be eligible to apply for citizenship on 09-28-2026 under the 3-year rule. I must, however, return to my home country for 10 months, from May 2024 to March 2025. I intend to visit the US for approximately 3 weeks in October 2024, which means I will have been out of the country for less than 5 months. And then go back for another 5 months. Will this circumvent the continuous residence requirements or simply set my application back by another 10 months? Will I have a problem reentering the US the second time?

 

 

Edited February 12 by AKN2

[OldUser 4,815]

- Will you have enough physical presence in the US when applying for naturalization?

- Will your US citizen spouse be with you all this time? Remember marital union part when filing under 3 year rule

- Will you keep properties, accounts, other ties to the US while away?

[AKN2 49]

2 minutes ago, OldUser said:

- Will you have enough physical presence in the US when applying for naturalization?

- Will your US citizen spouse be with you all this time? Remember marital union part when filing under 3 year rule

- Will you keep properties, accounts, other ties to the US while away?

1. Not sure what you mean. Should I automatically add another 10 months to my timeline before I apply for naturalization? Or can I apply on 09-28-2026, as originally planned, despite being out of the country for 2 five-month blocks?

2. My husband will be in the US during this time but he might visit.

3. As of now, my name isn't on the lease, but we will be keeping my US phone number active. I don't have a job or bank account yet. Should I open a bank account even though I don't have any income yet? What other ties can I show?

[OldUser 4,815]

5 minutes ago, AKN2 said:

1. Not sure what you mean. Should I automatically add another 10 months to my timeline before I apply for naturalization? Or can I apply on 09-28-2026, as originally planned, despite being out of the country for 2 five-month blocks?

2. My husband will be in the US during this time but he might visit.

3. As of now, my name isn't on the lease, but we will be keeping my US phone number active. I don't have a job or bank account yet. Should I open a bank account even though I don't have any income yet? What other ties can I show?

1. At the time of applying for N-400 under 3 year rule would you have at least 18 months of residing in the US in the last 3 years as LPR?

2. That's where the issue may be. Some immigration officers will interpret marital union rule very strictly. With you and your husband being apart for some time, they may claim this rule was broken, making you ineligible for N-400 under 3 year rule

3. Again, this is where the issue may be. Having just a phone is not strong evidence of keeping ties to the US. Lease, bills, banks may needed. Do you have driver's license with your current adrress?

 

Also, for N-400 under 3 year rule you may need to open a joint bank account and start using it sooner rather than later. You need to show you share finances with your spouse, even if you don't contribute to it right now due to no income. Do you file taxes jointly?

 

TL;DR If you want to have a go, you can. You may lose filing fee and would have to reapply under 5 year rule. This is not a legal advice

[Redro 4,600]

34 minutes ago, AKN2 said:

Hello, VJers!

So, I got my 10-year marriage-based GC and entered the US on 09-28-2023. I will be eligible to apply for citizenship on 09-28-2026 under the 3-year rule. I must, however, return to my home country for 10 months, from May 2024 to March 2025. I intend to visit the US for approximately 3 weeks in October 2024, which means I will have been out of the country for less than 5 months. And then go back for another 5 months. Will this circumvent the continuous residence requirements or simply set my application back by another 10 months? Will I have a problem reentering the US the second time?

 

 

I suggest you file for a re-entry permit. 
Even though you plan to come back for three weeks at the 5 month mark… things could change where you cannot come back to the US. 
This will protect you from the break of residency requirements.

It has happened before where someone plans to return before they have spent 6 months out of the country but then unexpected things happen and they cannot return until they’ve been outside the US for 11 months… 

@OldUser makes a good point about marital union. What type of evidence will you submit to show marital relationship while you are not living together? 

[mam521 1,725]

Agree with @OldUser - you have to be physically present in the U.S. for 18mo in the preceding 3 year period before applying.  If you are out of country for more than 6 months, it will be presumed that you've broken the physical presence rule.  If you plan to be gone for 10 straight months, I would highly recommend applying for a re-entry permit.  

 

You are going to have to build a stronger case for ties to the US and a strong marriage.  Your current evidence, as you stated it, is pretty weak.  

 

You may want to reconsider applying under the 3 year rule and apply under the 5 year rule.  You need 3 years (913 days) of physical presence under the 5 year rule and won't be required to prove your marriage is legitimate and strong in the same way you do for a 3 year filing.  

[appleblossom 1,307]

1 hour ago, mam521 said:

You need 3 years (913 days) of physical presence under the 5 year rule 

 

The days are right, but that's 2.5 years. 😊

[mam521 1,725]

4 minutes ago, appleblossom said:

 

The days are right, but that's 2.5 years. 😊

Ha...should have been 30 months.  Underlying point remains - gotta be physically present to apply!   

[AKN2 49]

3 hours ago, OldUser said:

1. At the time of applying for N-400 under 3 year rule would you have at least 18 months of residing in the US in the last 3 years as LPR?

2. That's where the issue may be. Some immigration officers will interpret marital union rule very strictly. With you and your husband being apart for some time, they may claim this rule was broken, making you ineligible for N-400 under 3 year rule

3. Again, this is where the issue may be. Having just a phone is not strong evidence of keeping ties to the US. Lease, bills, banks may needed. Do you have driver's license with your current adrress?

 

Also, for N-400 under 3 year rule you may need to open a joint bank account and start using it sooner rather than later. You need to show you share finances with your spouse, even if you don't contribute to it right now due to no income. Do you file taxes jointly?

 

TL;DR If you want to have a go, you can. You may lose filing fee and would have to reapply under 5 year rule. This is not a legal advice

 Is that 18 consecutive months? Hopefully, I will have that before I file.

As for the rest - lease, bank accounts, bills - I'm working on those things one by one. Just got started. Right now, I'm mainly worried about keeping my GC. I don't really care if I have to file at the 5-year mark, though 3 years would be nice. Thank you for the pointers.

[AKN2 49]

3 hours ago, Redro said:

I suggest you file for a re-entry permit. 
Even though you plan to come back for three weeks at the 5 month mark… things could change where you cannot come back to the US. 
This will protect you from the break of residency requirements.

It has happened before where someone plans to return before they have spent 6 months out of the country but then unexpected things happen and they cannot return until they’ve been outside the US for 11 months… 

@OldUser makes a good point about marital union. What type of evidence will you submit to show marital relationship while you are not living together? 

You're right, except  I read somewhere that it's taking 6 months for reentry permit approval and I need to go to my home country by May. What kind of marital relationship evidence can I gather while living apart? 

[AKN2 49]

3 hours ago, mam521 said:

Agree with @OldUser - you have to be physically present in the U.S. for 18mo in the preceding 3 year period before applying.  If you are out of country for more than 6 months, it will be presumed that you've broken the physical presence rule.  If you plan to be gone for 10 straight months, I would highly recommend applying for a re-entry permit.  

 

You are going to have to build a stronger case for ties to the US and a strong marriage.  Your current evidence, as you stated it, is pretty weak.  

 

You may want to reconsider applying under the 3 year rule and apply under the 5 year rule.  You need 3 years (913 days) of physical presence under the 5 year rule and won't be required to prove your marriage is legitimate and strong in the same way you do for a 3 year filing.  

How long does it currently take to get a reentry permit approved? I'm assuming I can't leave until it gets approved...? I intend to be out of the US in 2 five-month blocks, just so I don't have trouble getting back in. Do you think that'll work? I'm fine filing at the 5-year mark if there's a chance of denial at 3 years. 

[reddishradish 2]

9 minutes ago, AKN2 said:

How long does it currently take to get a reentry permit approved? I'm assuming I can't leave until it gets approved...? I intend to be out of the US in 2 five-month blocks, just so I don't have trouble getting back in. Do you think that'll work? I'm fine filing at the 5-year mark if there's a chance of denial at 3 years. 

From what I have read on the USCIS website, once they take your biometrics, you can request to receive it in the US Embassy, consulate or DHS of the country you'll be visiting. You still have to file it here in the US and wait for the biometrics appointment. Not sure about the timeline - some say it takes 6-8 weeks to get an appointment.

[Redro 4,600]

33 minutes ago, AKN2 said:

You're right, except  I read somewhere that it's taking 6 months for reentry permit approval and I need to go to my home country by May. What kind of marital relationship evidence can I gather while living apart? 

Generally, the USCIS cares about the financial aspect of your relationship.

How are you going to pay for your time in India? Will you work or will you be supported by your husband?

Are you planning on opening a joint bank account with your husband so you can share finances?

Are you planning to file taxes MFJ or MFS this year (2023) - you should file taxes for 2023 because that is when you became a resident. 

What type of evidence for your relationship did you submit for the IR1 visa petition?

Send more of the same but updated. 

 

[AKN2 49]

12 minutes ago, reddishradish said:

From what I have read on the USCIS website, once they take your biometrics, you can request to receive it in the US Embassy, consulate or DHS of the country you'll be visiting. You still have to file it here in the US and wait for the biometrics appointment. Not sure about the timeline - some say it takes 6-8 weeks to get an appointment.

Thank you for the info. I'm applying for a reentry permit just to be safe. 

[Rocio0010 5,565]

19 hours ago, AKN2 said:

visit the US

Be careful with your wording. You are worried about your timeline, but you yourself are saying you will "visit" the US.

 

Looking at your post history, the fact that your name isn't on the lease and you don't have a joint bank account PLUS the domestic violence charge do not guarantee a successful outcome for N400 under the three year rule.