Residency duration

[nemonat]

I have a question regarding the duration requirement for a Permanent Resident.
I am a US citizen and my wife got her Green Card. But we left afterwards to her Home country for a period of more than one year and going back to US now. We didn't lose her status and I would like to know how much longer do we need to live in US to fulfill the 3 year requirement to apply for citizenship and are we entitled to 90 days early admission?

I read online that you only need 2 years. Is this correct?

Thanks in advance!

[cafeconleche]

Did she have a re-entry permit?

[nemonat]

Yes she has SB1 visa

[cafeconleche]

Well, after an absence that breaks continuous residency, you can apply 2 years + 1 day after you return from that long trip. You don't get an extra 90 days with this. However, it's always simpler to wait 3 years minus 90 days to apply so that you can ignore the long trip and avoid complications. Also, wait about a week or so after the date you're eligible to apply in case CIS thinks you applied too early.

[nemonat]

USCIS law

If you leave the United States for 1 year or more, you have disrupted your "continuous residence." This is true even if you have a Re-entry Permit. If you leave the country for 1 year or longer, you may be eligible to re-enter as a Permanent Resident if you have a Re-entry Permit. But none of the time you were in the United States before you left the country counts toward your time in "continuous residence." Fortunately, if you return within 2 years, some of your time out of the country does count. In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your "continuous residence" requirement.

If you are applying based on 5 years as a Permanent Resident or 3 years as a Permanent Resident married to a U.S. citizen, you may file for naturalization up to 90 days before you meet the "continuous residence" requirement. For example, if you are applying based on 3 years of "continuous residence" as a Permanent Resident married to a U.S. citizen, you can apply any time after you have been a Permanent resident in continuous residence for 3 years minus 90 days. You may send your application before you have met the requirement for "continuous residence" only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application. You must also meet all the other eligibility requirements when you file your application with USCIS.



Can you please send me a link stating this rule about the 2 years and one day? I called 2 lawyers and they never heard of such an exception. Is this a new addition to the continuous residency rule?

[nemonat]

forgot

To thank you for your help!

[mailmusubi76]

Clarification: Continuous Residency

As a Permanent Resident who wants to apply for naturalization, I am aware that continous residency is one of the many hurdles. I just have a clarification with rules not being away from the US for 6-mos or more- is it a SINGLE TRIP of that length or is it an ACCUMULATION of days away within the 5-year period before applying?

Example:

A. Sept 1 2006 - October 1 2006 = 30 days
April 1 2007 - May 1 2007 = 30 days
Jan 1 2008 - Feb 1 2008 = 30 days
Mar 1 2009 - Jul 1 2009 = 120 days

Total days away from US from Jan 1 2006 - Jan 1 2011: 210 days / 7 months*

Is this deemed a disruption of continuous residency?

Thanks in advance for your input

[rayb]

Following is a citation describing how the "2 years and 1 day..." formula is applied. This was a new concept to me, and not sure if I have got it figured out yet.

"...Physical Presence. The applicant must have been physically present inside the US for at least 50% of the required period of residency. For most applicants, this means they must have been physically present inside the US for 30 out of the previous 60 months. For spouses of US citizens and peacetime veterans, the physical presence requirement is 18 out of the previous 36 months. If no Residency Period is required, then the Physical Presence requirement is reduced to one day. Any absence longer than one year will break the residency requirement. Anyone absent longer than one year will need to wait 4 years and 1 day after returning to the US (or 2 years and 1 day for spouses of US citizens)...."



--Ray B

If you leave the United States for 1 year or more, you have disrupted your "continuous residence." This is true even if you have a Re-entry Permit. If you leave the country for 1 year or longer, you may be eligible to re-enter as a Permanent Resident if you have a Re-entry Permit. But none of the time you were in the United States before you left the country counts toward your time in "continuous residence." Fortunately, if you return within 2 years, some of your time out of the country does count. In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your "continuous residence" requirement.

If you are applying based on 5 years as a Permanent Resident or 3 years as a Permanent Resident married to a U.S. citizen, you may file for naturalization up to 90 days before you meet the "continuous residence" requirement. For example, if you are applying based on 3 years of "continuous residence" as a Permanent Resident married to a U.S. citizen, you can apply any time after you have been a Permanent resident in continuous residence for 3 years minus 90 days. You may send your application before you have met the requirement for "continuous residence" only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application. You must also meet all the other eligibility requirements when you file your application with USCIS.



Can you please send me a link stating this rule about the 2 years and one day? I called 2 lawyers and they never heard of such an exception. Is this a new addition to the continuous residency rule?

[cafeconleche]

For the 4 years or 2 years + 1 day rule, check the guide to naturalisation (form M476), page 22. I'm surprised that this is new to you, rayb, since I have been under the impression that you're an immigration attorney. If you are, it's scary that you don't know it.

mailmusubi76, continuous residency can be tricky. Officially, you are ok if you don't make trips of longer than 1 year (but in practice, they don't like trips of longer than 6 months, and if you are out for longer than 6 months, you are seeking fresh admission back into the US, as opposed to being re-admitted). Some people try to trick the system by making several back-to-back trips of almost 6 months, returning to the US often for a few days in-between. Personally, I don't see anything wrong with this, and if one maintains ties and residency to the US, a denial by CIS citing a break of continuous residence based on a string of long trips could be struck down on appeal (I'm not sure about this, but if the guide doesn't say it's not allowed, one can claim ignorance). However, a total of 7 months in the 5 years preceding an N400 application would be no problem - it's the individual trips.

[rayb]

Cafeconleche,

I'm not an attorney, but have been involved with immigration paperwork for a long time. These nuances of immigration procedure don't usually come up until someone has been scouring the various immigration discussions for an option that may apply to his particular problem, often misinterpreting the purpose of such an exception to usual immigration rules. For example, while absences from the U.S. of 6 months or more might not disrupt the "continuous residency" requirement for eligibility, any such admissions on the N-400 will capture the attention of an interviewer and prompt some interview discussion, though not necessarily a resulting denial.

I've gotten feedback from Naturalization applicants whose paperwork I completed whose time outside the U.S. was borderline. Reviewer discretion sometimes allowed an approval that I expected a denial for, and unexpectedly denied when I expected otherwise.

--Ray B

For the 4 years or 2 years + 1 day rule, check the guide to naturalisation (form M476), page 22. I'm surprised that this is new to you, rayb, since I have been under the impression that you're an immigration attorney. If you are, it's scary that you don't know it.

mailmusubi76, continuous residency can be tricky. Officially, you are ok if you don't make trips of longer than 1 year (but in practice, they don't like trips of longer than 6 months, and if you are out for longer than 6 months, you are seeking fresh admission back into the US, as opposed to being re-admitted). Some people try to trick the system by making several back-to-back trips of almost 6 months, returning to the US often for a few days in-between. Personally, I don't see anything wrong with this, and if one maintains ties and residency to the US, a denial by CIS citing a break of continuous residence based on a string of long trips could be struck down on appeal (I'm not sure about this, but if the guide doesn't say it's not allowed, one can claim ignorance). However, a total of 7 months in the 5 years preceding an N400 application would be no problem - it's the individual trips.

[joshg]

residency physical presence?

hello all, I am in the process of applying for citizenship through 1 US parent and 1 alien parent, i am trying to find out if physical presence can still be counted if my mother was on vacation for 3 months out of the USA as a dependant of her father a US citizen who *WAS SERVING IN THE US COAST GUARD IN USA* for those 3 months that she was away? do those 3 months still count with him serving for USCG even though she wasnt in the same country?

my question is as a result of seeing this below but it doesnt say if the dependant is on vacation if it can still count, if you are on vacation are you not still a dependant and member of your parents household?


" Time when the parent is not present in the U.S. for the following reasons may also be counted as physical presence in the U.S. for the purpose of transmitting U.S. citizenship:

Honorable service in the Armed Forces of the United States;
Employment with the U.S. Government or with certain international organizations;

Residence overseas as a dependent unmarried son or daughter and a member of the household of an employee of the U.S. Government or certain international organizations.


any help would be much appreciated, thankyou.

josh.