special case - hence several questions

T

teleks

Registered Users (C)
This forum was very helpful during my Green Card process. You guys are very helpful. Hence here I go

again seeking clarifications...:)

Let me explain my case. I am eligible to apply for citizenship in June - 4 yrs 9 months. Got GC in

Sept 2002.

I left this country in 2005 June for an employment opportunity in India in a public international

organization. My husband lives here in Maryland and continues his job here. The plan is to settle in

India after getting the citizenship. I have been travelling twice a year to maintain the continuous

residency rule. Ok, added to this my 9 yr old child also lives with me in India and does schooling

there. She travels only once a year with me for summer vacations. We are all GC holders.

Now I am here in Maryland on summer vacation with my child - one of those trips to maintain continuous

residency. I will leave to India - end of this month. I plan to fill the application form, sign it and

let my husband file it along with his application together in June when the eligibilty kicks in.

1. Is it ok for my husband to file my application while I am away.

2. Form requires the dates that I left and returned to the country. Should I fill in left in May (the

date) - and returned blank, on the latest row. I will return for finger prints, the date is not known

yet.

3. How does my child get her citizenship ? The whole exercise is to make her a citizen so that she

will have the option to return if required. The reason for leaving in 2005, is to enable her to adjust

easily in India while she is still young.

Comments and replies much appreciated..
 
I see red flags here. In fact I am myself going to China next Monday and am eligible to file my n400 application some time next week, but am going to apply after coming back, because I don't want the USCIS officer to note I signed off a post dated form (before I was eligible to "apply"). I have seen some people whose applications were returned for having "applied" earlier than 4 years 9 months. In other cases if their application reached USCIS a day earlier than 5 years less 90 days they were denied even at the interview stage which was 5 months later!

teleks said:
This forum was very helpful during my Green Card process. You guys are very helpful. Hence here I go

again seeking clarifications...:)

Let me explain my case. I am eligible to apply for citizenship in June - 4 yrs 9 months. Got GC in

Sept 2002.

I left this country in 2005 June for an employment opportunity in India in a public international

organization. My husband lives here in Maryland and continues his job here. The plan is to settle in

India after getting the citizenship. I have been travelling twice a year to maintain the continuous

residency rule. Ok, added to this my 9 yr old child also lives with me in India and does schooling

there. She travels only once a year with me for summer vacations. We are all GC holders.

Now I am here in Maryland on summer vacation with my child - one of those trips to maintain continuous

residency. I will leave to India - end of this month. I plan to fill the application form, sign it and

let my husband file it along with his application together in June when the eligibilty kicks in.

1. Is it ok for my husband to file my application while I am away.

2. Form requires the dates that I left and returned to the country. Should I fill in left in May (the

date) - and returned blank, on the latest row. I will return for finger prints, the date is not known

yet.

3. How does my child get her citizenship ? The whole exercise is to make her a citizen so that she

will have the option to return if required. The reason for leaving in 2005, is to enable her to adjust

easily in India while she is still young.

Comments and replies much appreciated..
Click to expand...
 
Last edited by a moderator:
teleks said:
1. Is it ok for my husband to file my application while I am away.

2. Form requires the dates that I left and returned to the country. Should I fill in left in May (the

date) - and returned blank, on the latest row. I will return for finger prints, the date is not known

yet.

3. How does my child get her citizenship ? The whole exercise is to make her a citizen so that she
Click to expand...
As to your question
1. I am pretty certain you have to be present in US to apply for citizenship.
2. Is a moot point since q1 is no.
3. If you do get citizenship, you child becomes a citizen automatically, provided that the child is residing in US. For proof of citizenship, file N-600 for certificate of citizenship for child.

That said, you are not eligible for US citizenship in June. You left US and took up a permanent job in a foriegn country with an intention to reside there. The moment you did this, you have abandoned the residence. Even with your trips back every 6 months, you'll have a difficult time convincing interviewing officers that those trips are not just mere attempts to keep the green card.
 
Sorry to say you're going to need a VERY understanding IO before you case will be approved. The two big red flags are:

i. Foreign employment of indefinite length. Serious problems here, as it demonstrates you intend(ed) to abandon your residency and live permanently in India.

ii. Repeated short visits to the US in an effort to circumvent the 6 month continuous residence rule. USCIS sees this all the time and usually denies the person based on intention of residing full time abroad rather than a one-off six month visit somewhere, followed by another independent trip.

As far as I can see, the only thing in your favor is that apparently your husband maintained his residency here in the US. He needs to apply for natz and then some of your problems will be solved; namely your child will become a citizen automagically provided she enters the US on a valid GC, and stays there until he is naturalized. (See Child Citizenship Act of 2000 for more exact details).
 
Just to clarify boatbod's last point. I think it would suffice for the child to enter the U.S. as a permanent resident (GC) after the father has naturalized, as long as the father has physical and legal custody of the child (which according to your post he has). Main point is that the child doesn't need to be in the U.S. during the father's naturalization process. That is my understanding of the child citizenship act, but please be aware that this is not legal advice. On the other hand it wouldn't hurt that when you know your husband's oath ceremony date to send the child in time to be in the U.S. as a permanent resident at the time the father acquires citizenship.

The N-600 would add another extra trip for the child for the interview. Other than that I am not sure whether both parents have to be present to ask for the passport for the child. However, I am sure you can organize a trip with your daughter to the U.S. and then apply together for the passport.

I agree that your naturalization chances are a bit tougher in your situation. You could still try to fill out the application on your next trip to the U.S. and see if you get lucky. You'll still risk the $400 dollars. I cannot tell you your chances to be rejected, as it would depend on the IO and how you conduct your interview. Sometimes one cannot have the cake and eat it too :(
 
Last edited by a moderator:
I'm not an expert, but I agree that it does seem you have abadoned your permanent residence. Not only will your application likely be rejected, but your permanent residence status may be questioned. If I were you, I wouldn't submit an N-400.
 
My concern at this point would be to do nothing further that might risk your child's LPR status.

As I understand it, right now she is in the US legally (i.e. the immigration officers at your PoE decided to let her reenter), so there is some risk that if she goes back to India for however many more months before her father gets his USC, will that put her GC in jeopardy. If she simply stays here until he gets naturalized, you will be able to apply for her passport immediately afterwards.

N-600 might be a problem - theoretically everything should be ok, but USCIS have been reluctant to issue certificates of citizenship for children residing abroad. The process is also rather long (+1yr?) for something that should be very easy and quick.
 
If a child is/becomes a citizen, but want to apply for a citizenship cert from abroad, the parent can use an N-600k for the application.

But, for the child to gain citizenship, he/she would need to reside as a permanent resident in the US (with the USC parent) sometime after the parent becomes a citizen.
 
Flydog said:
But, for the child to gain citizenship, he/she would need to reside as a permanent resident in the US (with the USC parent) sometime after the parent becomes a citizen.
Click to expand...

I may be wrong. But one of my friends daughter left before the parents became citizen to continue her studies in her country. Once the parents became citizen she came down to US to get her citizenship before she becomes major. Of course she was here permanently for more than 10 years.
 
Here are the rules (from http://travel.state.gov/family/adoption/info/info_457.html):

  • Have at least one American citizen parent by birth or naturalization
  • Be under 18 years of age
  • Live in the legal and physical custody of the American citizen parent
  • Be admitted as an immigrant for lawful permanent residence

The child actually has to be a "legitimate child".

So, if the child has a green card but studies abroad, he/she needs to be able to prove that they "reside" in the custody of the parents and that their "permanent residence" has not been broken.
 
Your situation is very complex and it raises many red flags my suggestion is that you hire good immigration attorney.
 
My point would be that if the father naturalizes successfully, and the mother and child fly to the U.S. and the child is admitted with her Green Card, and they go to a post office or to a passport office to apply for her passport, chances are she will get the passport. I don't know if this is right or wrong from a legal or moral point of view, but I think that's what would happen. After that if the child has to go back to India I am not sure what N-600 form is the best form to use. The mother's case to keep the GC or eventually naturalize looks much tougher.
 
Yep, it's not looking good. You need to maybe visit India for vacation, not visit the US for one. How long you will be able to continue to get into the US with your green card will also be ify with every time you try to enter as you aren't even fulfilling the requirements to keep the Green Card.

It may come down to where your husband gets his USC and then has to then do the N-600 to petition you to come as a family member which who knows how long that is taking these days.

Probably the best bet if you want to be a USC, then you need to move back to the US, stay in the US with your husband, restart your clock and then apply down the road...
 
Thank You for all your replies.

I work for a public international organization - World Bank, whose headquarters is in DC. Can I not convince the IO that eventually I will move back to the DC office, and that I am temporarily working on a project outside the country ? What happens to people who are on a travelling job ? No where have I stated that I am on vacation in US or that it is a personal trip. My application will reach them only after 4 yrs 9 months - not before that. I can sign and mail the application from any part of the world, it does not mean I have signed a post dated form. I will try my luck, but I wanted to know << if I could leave the returned date blank >>. I will come back for finger print,if there is a request for that, and for the interview. So I have to update those dates anyway during the interview. I can explain during the interview that I have an out station posting for a while.

What does legal custody of the parent mean ? Assuming my husband gets the citizenship, (fingers crossed for mine - or say mine is denied), my daughter lives with me, does this mean she not in legal custody of her father? I would like to understand this point.

I don't mind if my GC/citizenship is denied. I can always get a G4 visa thru my office and enter the country. I am more interested in getting the citizenship for my daughter.

Once again thank you for your support and answers to my tough questions.
 
teleks:

If you work in the US and your company sends you abroad for some time when you're a permanent resident, you can infact preserve your US residency for naturalization purposes. However, in order to do this, you had to file form N-470 "Application to Preserve Residence for Naturalization Purposes" before you left the US to work abroad. Since you did not do this, your residency is not preserved and you will have abandoned residency. And you have to be in the US when you apply for citizenship. You can always try to beat the system, but you may not be successful.

Your daughter should be fine. After your husband gets his citizenship, as long as she comes back to the US and is admitted as a permanent resident, she can apply for a US passport. Or, to play it safe, make sure she's in the US when your husband becomes a citizen. In this case if you and your husband are still married and not legally seperated, he has legal custody of the child regardless of where the child is. For example, if the child goes on a vacation with one parent, it doesn't mean the other parent no longer has custody.
 
As long as my child's naturalization is taken care of, I am happy.

Regarding N-470, I researched this form before leaving for my employment in 2005 - it states
<<
You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes.
>>
Since I knew for sure I will not be away for a continous one year, I did not file this. My GC is still active - I entered the country in April this year on GC and will leave end of May. I entered 4 times now and did not have any issues. At POE I tell the officer that I was out on job assignments.

Thank you for your detailed reply - and it is relaxing to know that my child will not have any issues.
 
teleks said:
As long as my child's naturalization is taken care of, I am happy.

Regarding N-470, I researched this form before leaving for my employment in 2005 - it states
<<
You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes.
>>
Since I knew for sure I will not be away for a continous one year, I did not file this. My GC is still active - I entered the country in April this year on GC and will leave end of May. I entered 4 times now and did not have any issues. At POE I tell the officer that I was out on job assignments.

Thank you for your detailed reply - and it is relaxing to know that my child will not have any issues.
Click to expand...

Your life would have been immeasurably easier if you had applied for an N-470. Having one is pretty much the holy grail of natz applicants because you can come and go as much as you like and not have any problem with getting your USC at the end of it.

However, since that isn't the case, you just need to be careful to preserve your daughter's GC, so that she can become a USC as soon as your husband takes his oath. Remember, its not just your GC thats at stake with you & your daughter living overseas.
 
teleks said:
Thank You for all your replies.

I work for a public international organization - World Bank, whose headquarters is in DC. Can I not convince the IO that eventually I will move back to the DC office, and that I am temporarily working on a project outside the country ? What happens to people who are on a travelling job ?

No where have I stated that I am on vacation in US or that it is a personal trip. My application will reach them only after 4 yrs 9 months - not before that. I can sign and mail the application from any part of the world, it does not mean I have signed a post dated form.

I will try my luck, but I wanted to know << if I could leave the returned date blank >>. I will come back for finger print,if there is a request for that, and for the interview. So I have to update those dates anyway during the interview. I can explain during the interview that I have an out station posting for a while.

What does legal custody of the parent mean ? Assuming my husband gets the citizenship, (fingers crossed for mine - or say mine is denied), my daughter lives with me, does this mean she not in legal custody of her father? I would like to understand this point.

I don't mind if my GC/citizenship is denied. I can always get a G4 visa thru my office and enter the country. I am more interested in getting the citizenship for my daughter.

Once again thank you for your support and answers to my tough questions.
Click to expand...

Teleks - I will be very surprised if your N-400 application is successful. For example, see

http://immigrationportal.com/showthread.php?t=246924

As far as traveling on the job - you could have avoided this problem by filing a n N-470 before you left the country.

While you may mail the form from anywhere in the world - there is a requirement that you must have "resided within a state or district for at least three months" - I am not sure you still "reside" in the US.

However, your husband should be able to naturalize and your daughter should be able to get citizenship after she comes back to the states with you. To be sure you might want to come to the states before your husband's oath ceremony and immediately after file for her citizenship.

If you should decide to come to the states for an extended stay in the future, either your husband (or daughter if it is after she is grown up) can file for a GC for you easily.

Good luck.
 
Congratulations

Glad to hear that everything worked out despite the skepticism of the "experts" on this forum.
 
You must log in or register to reply here.
Top