As a US legal permanent resident (LPR) I wish to re-establish "continuous residence" for purposes of naturalization by returning to live full time in the US, with no further trips out of the US from 2/2001.

I have provably NOT been out of the US for more than 179 days on each trip since 8/99 (though I am not presently in the US); I HAVE claimed the Foreign Earned Income Exclusion (FEIE) since 1993 on US Resident 1040s, but will NOT claim it for Tax Year 2000. I have not filed state income tax returns since 1990, but will file state returns annually from Tax Year 2000. Assume that my re-entry into the US in 2/2001 is trouble-free. I intend to file Form N-400 four years and a day after the date of my resumption of "continuous residence" in 2/2001.

Question: What is the risk that INS could in 2/2005 vitiate my re-established, provable and unbroken continuous residence and physical presence by concluding that I had already abandoned my LPR status before 2/2001, after looking back at tax years from 1993 through 1999 when I claimed the FEIE?

Many thanks for your kind assistance with my inquiry.

gm

Dear gm:

You obviously have done some research, or received advice, on your problem. In our opinion, you have a very good chance to retain your permanent residence, and ultimately acquire US citizenship if you have no problems on your re-entry and you later maintain your residence as you state.

Since there is a possibility that your lengthy absences can be questioned at your interview, we would strongly suggest that you use the services of an immigration law attorney who has experience in handling naturalization matters. Good luck.

Please advise on this scenario :
I have been a green card holder since 1985 when I was a minor at age 11.
I have been travelling to the US every year without fail since then for at least 1 month and then returning to my country of birth in the Caribbean.
I permanently moved here in 1990 to study. I was living continuously in the US from 1990 til 1993 with maybe one or two trips outside which lasted not more than a month.
Between 1994 and 1996 I again have done some travelling in and out of the US with the longest absence lasting exactly 191 days.
Returned here again permanently in 1997 and have been continuously retaining residence since then with no trips outside US lasting more than 1 week maximum.
All taxes were filed between the years of 1993 and 2000 and no criminal record.
I want to naturalize now.
Will that one absence of 191 days affect me in any way ?
I still had bank accounts open here since 1993 and valid driver's license and filed taxes that year but had to leave suddenly because father suffered heart attck and underwent heart bypass surgery in Caribbean. Did not take up any employment overseas and clearly did not intend to abandon residence.
Thank You

Dear NotSure:

Based on the information you have supplied, you should not have a problem in obtaining naturalization. The only problem period was from 1985-1990. However, since then you have clearly maintained a US residence, and you had a valid reason for spending so much time out of the US. Also, since your only departure of more than six months was before 1997, that should also not be a major problem.

However, since there is always the possibility that Immigration may want to delve into your absences in greater detail, you must fully document your absences (and the reasons for them) and your periods of stay in the US. You may also wish to speak with an immigration law attorney, and go over all of the facts of your case, before you file your application. Good luck.

Thank you for your prompt reply to my original message!

A critical assumption of my naturalization strategy has been my compliance with 8 CFR Section 316.5(c)(1)(ii), which allows me to satisfy my five-year statutory residence period for naturalization four years and a day following the date of my return to the U.S. to resume permanent residence.

I believed that my irrefutable proof of compliance with the above rule would effectively shield me from suspicion that I abandoned my LPR status, even though I have claimed the FEIE for years earlier. However, it seems clear that the real threat to the success of my naturalization application may lie in 8 CFR Section 316.5(c)(2), which says that an LPR who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability...raises a rebuttable presumption that the LPR has relinquished the privileges of permanent resident status in the U.S.

Question:

By claiming FEIE did I effectively ‘voluntarily claim nonresident alien status to qualify for special exemptions from income tax liability’? If so, what can I do now to build for a future interview a strong case to rebut the presumption of abandonment of my LPR status?

Thank you.

gm

Dear gm:

Your questions are really ones that should be discussed in person with an immigration law attorney. He/she will want to ask you dozens of questions to elicit the reasons for your claiming the FEIE, what you were doing outside of the US, what ties did you maintain with the US, what have you been doing in the US the past 4 years, what do you plan on doing in the future, what ties do you have outside the US, etc.

It is obviously impossible to discuss all of these items on a Bulletin Board. As we stated above, assuming you have valid reasons for your actions, you should be eligible for naturalization. But you need to supply more information and evidence of your ultimate intent. Good luck.

Thank you so much for your reply!

Your response gave me the essence of what I need to do, namely, analyze and articulate the reasons for--and justify with supporting evidence--my past actions and future intent.

I will certainly heed your advice and seek the advice of an immigration law attorney. Until I can meet with an attorney Stateside in person, as a guide to understanding the kinds of issues I may face in justifying my actions I will review criteria established in past BIA decisions to determine whether abandonment has occurred.

Thank you again for taking the time to respond so promptly to my questions. Your efforts go a long way to help a lot of people like me find a way around the landmines the INS is so skilled at planting.

gm

My daughter is a permanent resident of the US and went back to the Philippines to finish her college degree. She came here in Sept 12, 1996 and left for the Philippines in Sept. 1997 as a student. She came back in March 1999. My other children will be eligible to apply for naturalization in June of this year. Would she qualify to apply too??

Dear Georgem:

We are assuming from your question that your daughter remained outside of the US from Sept. 1997 until March 1999. If that is the case, then this constituted a break in the 5-year period necessary to apply for naturalization.

As such, she will be able to apply for naturalization 4 years and 1 day after her re-entry in March 1999, assuming she continues to maintain a residence in the US. Good luck.

Is the "less-than-six months rule" for continuous residency for holders of green cards cumulative? In other words, is it ok for me to be outside the US for less than six months during the first half of a calendar year, return to the US for, say, a month, and then leave again and be absent from the US for less than six months during the remainder of the same year? Or, do I only get less than six months outside of the US every year?

Dear Anonymous:

The law provides that there is a "presumption" that you have abandoned your permanent residence if you stay out more than 6 months continuously. The presumption does not arise in the scenario that you describe. Good luck.

I allready apply for naturalization. but not have finger print done yet. Know i have a family emergency back at my home country is there any problem for me getting citizenship if i go back there for couple of weeks please advise me thanx

Dear Anonymous:

You have the right to travel outside of the US while your application for naturalization is pending. Just be sure that you come back in time for your appointment, or you may have to file your application all over again. Good luck.

Hi, I am in a similar situation to the advice you gave someone else shown below.
Regarding the advice you gave;"As such, she will be able to apply for naturalization 4 years and 1 day after her re-entry in March 1999, assuming she continues to maintain a residence in the US."

How come you state 4 years and 1 day to apply? I thought you were only able to apply 3 months prior to your 5 year completion?
Please advise,
Thanks

By georgem on Tuesday, March 13, 2001 - 12:22 pm:
My daughter is a permanent resident of the US and went back to the Philippines to finish her college degree. She came here in Sept 12, 1996 and left for the Philippines in Sept. 1997 as a student. She came back in March 1999. My other children will be eligible to apply for naturalization in June of this year. Would she qualify to apply too??
------------------------------------------------
By ImmigrationHelp on Tuesday, March 13, 2001 - 05:41 pm:
Dear Georgem:
We are assuming from your question that your daughter remained outside of the US from Sept. 1997 until March 1999. If that is the case, then this constituted a break in the 5-year period necessary to apply for naturalization.
As such, she will be able to apply for naturalization 4 years and 1 day after her re-entry in March 1999, assuming she continues to maintain a residence in the US. Good luck

Dear Anonymous:

The following would be the facts: The person is a permanent resident, and has been outside the US for one year. Under the law, the one year continuously outside the US breaks the 5 year period of residence required to file for naturalization. That person now enters the US. If they maintain their residence in the US for 4 years and one day, they would not have been outside of the US for more than one continuous year within the last 5 years, they would have been a resident for at least the past 5 years, and assuming that they had also been physically present for at least 1/2 of the past 5 years, they would be eligible to file for naturalization.

We hope this has answered your question. Good luck.

Hi,
I want to know if one can go out of US for a short
period of a month or so during the period between
the interview for Natrualization and Oath Ceremony
to meet some family emergency like illness

Dear Anonymous:

Yes. You can travel while your application for naturalizatiion is pending, as long as your trips outside of the US are brief. While you could stay out for up to 6 months, we generally recommend that you not stay out for more than 3 consecutive months. Good luck.

I am an american citizen married to a LPR from Ecuador (conditional until 1/03). I petitioned for his 2 children ages 9 and 11 and was approved (LPRs also). Their consulate interview is next month. My concern is this, while the children will be staying with us 1-2 months per year, they will be returning to Ecuador for the remaining 10 or 11 months a year for school and to be with their natural mother. Will a patten such as this for several years (until they are older) jeopardize their residency status? Secondly, is there a document to ask for permission for them to study in their native country or must they maintain a minimum residence in the US regardless that their natural mother lives there and they are minors. Third issue, when my husband applies for citizenship in 2 years, will they be able to naturalize with him or must they maintain 5 years continuous residency here?

Thanks for your clarification that for short
periods one can leave the US for meeting some
family emergencies after filing application for
Natrualization. However, my specific question
relates to leaving the US to meet unforeseen
family emergencies during the period after the
interview for natrualization and before the
scheduled oath ceremony. Does your clarification
cover this period as well or one cannot go out
during this particular period without getting the
Natrualization certificate and US Passport?

Dear DJC:

If the children continue to remain outside of the US for 10-11 months each year, for many years, they could indeed have their residency taken away from them.

While INS is fairly lenient with students who are studying outside of the US, this cannot go on for more than a few years.

They can always request a re-entry permit, but this is only good for 2 years, and can be renewed once for two years without any problem.

If the children are still maintaining their lawful resident status when their father is naturalized, they should be eligible for citizenship. Good luck.

Dear Anonymous:

Our answer is the same for persons who travel outside of the US following their naturalization interview, but before their swearing in. Good luck.

Thanks a lot for the information with regard to
going out of the US to meet family
emergencieswhile awaiting for interview or oath
ceremony after filing an application for
Natrualization.
I have a few more questions and shall be greatful
for information with regard to the same.
(1) Can one seek rescheduling of date for the oath
ceremony in case one happens to be out of the US
and one gets information with regard to the date
of oath ceremony during one's short visit of less
than three months? If so, how to go about it ie
whether one can seek rescheduling while being out
of US? Or a son who resides in the US can seek a
rescheduling of the date on his behalf by making
an application to INS.
(2) Can there be problem with regard to filing of
Tax returns, if a person is a senior citizen aged
65 years plus and does not have any taxable income
and is dependent for his livelihood upon his son
who is a green card holder and that person has
been claimed as "DEPENDENT PARENT" by the son
during the last four/five years.

Dear Anonymous:

Yes, you or your son (with your authorization) can seek to have your swearing in date rescheduled.

If you are not required to file a return, then there is no problem. As to whether you are required to file or not, you should check with an accountant, CPA, or tax attorney. Good luck.

First, thanks for the great help provided in this site.
I am a permanent resident and have been employed for the same company since 1997. I have spent most of 2000 in Canada working for an affiliate of this US company (including 8 months on the Canadian affiliate payroll) . I regularily made weekend trips back to the US (every 2-3 months) during that year. I did maintain my US driver license, US license plate, bank account but not a appartment during that year. I used a friend of mine address instead. I filed US resident Federal and State taxes for that year and did not claim any exclusions (except Foreign tax credit). Prior to that year, I took a few short weekend trips outside the US to Canada and never been in the US for one continuous consecutive year.

Part of the reason of this Canadian stay in 2000 was to be with my wife who was a canadian resident and was denied entrance to the US.

Although I did not take more than 6 months trips in this case, Can the above constitute a break in my continuous residence in the US and be interpreted like so by the INS if I file for naturalization especially that my only son was born during that year in Canada..

Dear Anonymous:

Certainly, INS will look at the above factors to try to determine whether you have in fact abandoned permanent residence status in the US.

Based on the information you have provided, you are not ineligible to apply for naturalization, nor is there a presumption of abandonment of permanent residence.

Assuming you can substantiate the reasons why you spent most of the year in Canada, and can establish your intent to reside in the US permanently, then you should be able to obtain naturalization. Good luck.

Thanks for your reply. I was worried more about continuous residence than abandoning permanent residence. Is there a difference between the two in INS speak?

Thanks

Dear Anonymous:

We believe that you have maintained a continuous residence in the US. Please refer to 8 CFR Sec. 316.5 for more on continuous residence.

There is a distinction between abandonment of permanent residence, and failure to maintain a continuous residence. Again, refer to the above section of law for more information. Good luck.

My heart felt thanks for your precious help!

Dear Sir,

I have received my visa from an American Consulate outside the USA, on the grounds of my wife being American. We are now going to the USA in order to get the green card for me. As we are missionaries, we will often be traveling outside the USA for more than six months. Do I have to continue filling out re-entry forms I-131 for $110 in order not to loose my status as a permanent resident every time our trips will be longer than six months, or does the law also provide a more easy way for missionaries with a green card to more easily go in and out for prolonged periods of time? I have the possibility to sign up with an American missionary organization, if that would help, but what exactly would need to be done? Or could I, for that purpose, open my own missionary organization in the USA?

In order for my time outside the USA to count for becoming a US citizen (passport owner), I understand that I can fill out form N-470 “Application to Preserve Residence for Naturalization Purposes”, which has a provision for missionaries. Do I understand correctly that I can only submit it after I have been in the USA for a whole year in total (the time outside the USA will not count then, even though it is not forbidden for missionaries to go outside the USA during that first year to keep up the requirement for this application)? When would it be wise to submit this application? In advance, that is in the first few months of having the stamp in the passport, or the greed card itself; or in arrears, after years of serving under a US missionary organization, or possibly under my own organization?

Thank you very much for your efforts in answering my inquiry, may God bless you.

Dear Anonymous:

Section 317 of the Immigration and Nationality Act applies to missionaries who are permanent residents and will be working outside of the US.

The provision as to physical presence reads as follows: "has at any time thereafter and before filing an application for naturalization been physically present and residing within the United States for an uninterrupted period of at least one year."

This means that before you can file for naturalization, you must have resided in the US for "an uninterrupted period of at least one year."

You can file the application at any time, after you have been physically present in the US for one year. In the case of a missionary, you can even file it after you have been out of the US for more than one year.

Whatever missionary organization you work for must be a bona fide and recognized organization.

If you read carefully the instructions to the form, as well as section 317, you will be able to understand this point more easily. Good luck.

My wife and I are French Citizen and have lived in the U.S. for 17 years, and have been permanent U.S. residents for 12 years. My U.S. company is considering sending me in about 8 month from now to a 3 to 5 year long assignment in Asia. My questions are as follows:
1) If we apply now for citizenship, knowing that we are in Texas where it takes a long time, can we just come back for the interview from Asia then finish the assignment in Asia as US citizen for a few more years, then return to the U.S. still as U.S. citizen?
2) Is it mandatory to keep a home in the U.S. while in Asia ?
3) Can we keep dual citizenship ?
Thank you in advance for your answers

On July 17,2002, I went for naturalization interview and passed the interview and exam and I got a paper congratulating me and they told me that I should wait fo the oath taking that will happen that day, but when they were about to close, they told me that i am not eligible.

I have been a permanent resident since 1997. My husband is working overseas for a contract which the US government is invlove, and the company he works for is in partnership with the biggest aircraft maker in the world. They are involve in maintaining the agreement between the US govt and the foreign country to maintain their air force.

I was told that I do qualif because of technicality. Is there a way to contest this? When I applied, I had a lawyer, but I really did not have the chance to talk and discuss my case as after he got hsi money from me, and he sent my application, I have not heard from him at all. I am leary of lawyers, but I need help. My husband is still working overseas and I am her ein the US and will follow him again soon. I have lived here in the US and have worked, but my residency was interrupted because of my husband's work...plese help...

Dear Anonymous:

As long as you have not abandoned your residence by the time you come back for your interview, you should be all right. You can also file Immigration form N-470, Application to Preserve Residence for Naturalization Purposes.

However, because you want to be sure you do not abandon residence, we would suggest that you speak with an immigration law attorney before leaving the country. Good luck.

Dear Immigration Help,
I have green card for 10 years, but first 6 years I spent outside the US, coming here for 1-2 days in a year, and twice obtained re-entry permit.

4 years ago I came here and spent here 2.5 years without leauving US for more than 1-2 days in a year.
After I aquired the needed amount of 2.5 years of
time inside the US, according to naturalization law I thought that I achieved all the needed time, and started the following excercize:
I came here for 1-2 days each 6 month period for 1.5 years that I needed before 4 years and 1 day that I needed to apply.

so:
1) first 6 years do not count
2) 2.5 years inside the US
3) 1.5 years going in and out every 6 month.

How are my chances to obtain citizenship ?
Thank you in advance for your reply.

Hi all.
I am wondering how the absence from the US between 6month to 12 month affected.
After I spent time from June 1998 to
2001, Aug(3 year & 2 month),
I change job and it requires to work outside
US. Offer is not exactly relocation but it requires to work in outside and paid by forien currency by HR in the country.
After 4 month I visit US and stay a few days and
come back to the contry again and spent another 4 month. means I had the living address there for 8 months even though a single trip outside US never over 6 monthes.
After 8 month I quit the position, then I came to the US and find another job in US.
Then it has been 5 year.
I am not sure if my pattern satisfied the continuous residency.

I also not sure the difference between 6-12 month absence and over 12 month absence.

The guide clearly states that spending time more than 1 year outdside US completely break and even the time spent in the US before he/she leaves US is not counted(means he/she has to wait 4 years and 1 day after coming back).

Is this true for the trip between 6monthes to 12 monthes or
only the absence period is not counted.
Means if one spent 4 years in the US and then
spent 7 month outside, one only has to wait
1 year after he comes back US?
Please give me suggestion.

Thank you.

Hi
Thank you in advance for helping me and others on this board!!!
My question seems repititous, but here it goes;
We are GC holders and have been here continously living in US for the past 3 years, but now due to loss of job, are thinking of moving to back Canada.
Now, what happens if i find a job there and stay there? would that mean that we abandoned residency? even if i go to US for few days at a time every 2-3 months? what if i maintain a resident or presence in a neighboring state (like living in the state but work in CAN or vice versa)?

We came to US on as a permanent resident in Nov 1996. I wanted to get a degree from India in International Business so we went to india in June 1998 with a re-entry permit. We came back to US in April 1999 before our re-entry permit expires. Then we went back to India to finish my remaining bachelors in July 2000 and came back in May 2001. After then we have been staying in US till present. So when can i be elligible for naturalization. Please let me soon.

Thanks for your help

My wife is an American citizen. We have two children, both born in the U.S.A.They are living in the United States. (American citizens). How long does it take to petition me? We have been married (we got married in the U.S.A.)more than 5 years, but she did not apply for a green card for me because we were told that i coud not travel out of the U.S.A. for at least one year - is this true? Or can i still travel back and forth to my home country - spend every other month in the U.S.A -spend 30 days in U.S.A and spend 30 days in my home country - because of business reasons.
thanks

My friend and his family came from India to USA after obtaining American Green Card. Unfortunately, due to family reasons his wife and the children need to go back to India immediately for short time. They are in USA for less than four months only. My question is:1. can his family visit India? and 2. Is so, how long they can stay in India before coming back to USA keeping the permanent residency status?
Thanks for your advice.
Sincerely ... Kalyan

To Whom it may concern,
I to am a green card holder working in the US as a nanny, my employers are thinking about moving to Europe for a year and want me to go with them.
My question is should I apply for citizienship now even though it will not be processed before I leave, or do I postpone it until I come back? Also what laws do I need to follow about continous residency, do I need to be back in the States every few months for a certain period of time? I do inteend to keep renting my apt and pay taxes while I am gone.
Thank you for any input you may have on this matter.

Dear Sir, '

I am having a big problem with the immigration and I am in desperate need of an advice from an immigration attorney. I pray to God that you can help me.

I have a permanent green card, issued almost 4 years ago and I lived in the US for sixteen years. I applied for my American citizenship in September 2003. I had my interview in April 2004, almost 5 months ago. I lost my job in the US and was in a terrible financial situation and had to move in with a friend of mine. I cancelled all my bills because I could not afford to pay anything at that moment. I was living with friends as a favor. I have worked in tv production for a while, and my ex boss, who is also Brazilian, and had moved back to Brazil, hired me to work in a production in Brazil. Since I had no money or job, I took the offer and went to Brazil. I have been here for almost 2 months now.

Immigration sent me a letter with the oath ceremony date: September 17th 2004. I was excited to hear about it and planned to travel to Brazil on the 15th for the ceremony.

Here is where the trouble is: My friend in the US, where I was staying before coming to Brazil, told me that I got a call from an immigration officer. I got the number from her and called him back. He told me he got information that I was not living in the US and asked me to go in for another interview with him on September 16th, one day before the oath ceremony. I told him I was doing a freelance work in Brazil but was still a US resident.

What do I do? How can I prove to him that I still reside in the US eventhough my life is extremely confusing right now, I have no bills on my name or anything else to prove it? I do have my income tax returns, including the one from 2003. I also have a bank account with little money on it. Is this enough?

Also, can they take my green card away?

Thank you very very much for your help