Continuous Residency

A

ameriki_monk

Registered Users (C)
I am applying for my wife's N 400. Her GC was approved in July 2010; we had several trips outside US and one trip lasted 313 days all the other trips were less than 180 days.

Here are the dates for out of US

GC Approved 07/2010
jan. 2011 to April 2011 72 days out of US
July 2011 to December 2011 148 days out of US
december 28 to June 2012 139 days out of US
October 2012 to August 2013 313 days out of US
Jan 2014 to Feb 2014 45 days out of US

In US since Feb 2014

I was working outside US for two years, and we had tickets to fly back in April 2013, but our three month old son was sick and doctor advised us not to fly at that time. I filed all the taxes during we were out and we also owned a house in US during that time, so the trip was over 180 days.

Since the last trip that lasted 313 days, we have been back in US since August 2013 and been here for 580 days. Is she eligible to apply; does she need to wait? I thought she needs to have continuous residency of 18 months. Is this correct?
 
You need 18 months of physical presence within the last three years of continuous residency to apply on the spousal basis. You easily satisfy the physical presence requirement, but the continuous residency part is difficult.

The problem is that you were working outside the US for two years. That means you were living outside the US. Normally this is no problem, but when you're applying for naturalization on the 3-year basis via marriage, one of the requirements is that the married couple must be living together for the entire three years (the "joint residence" requirement), and in fact you must live together for every single day within those three years (temporary travel is OK, but residence-wise you cannot even live apart for one day). This puts you in a catch-22: if your wife was living with you, then she wasn't living in the US, so she fails the continuous residency requirement; and if your wife was living in the US, then she wasn't living with you, so she fails the joint residence requirement. Now, if you didn't have the 313-day absence, then you might be able to just stay silent on the issue and hope they don't notice, but with the 313-day absence, you will have to answer some very probing questions about the absence, and while you may well be able to prove continuous residence by itself, I don't see any way how you can prove both continuous residence in the US and joint residence with your spouse.

Your options are to wait until you have three years joint residence in the US (presumably 90 days before Feb. 2017), or wait until 90 days before August 2018 at which point she can apply unaided under the 5-year rule and the joint residence requirement no longer applies.

It's almost impossible for one spouse to be working outside the US while the other spouse maintains both US and joint residence. The only way we were able to do it is by living in a border town with Canada, and working in Canada, and I don't know anyone else other than us who has pulled it off.
 
Last edited:
Thanks for your reply Harry. When I was working outside US, we both were together. Her GC is approved since July 2010, and we during this 5 year period; we stayed together for almost 48 months. During the long absence outside US, we were together; she spent four months in US while I was outside US (she was waiting on her permanent card) and there are few short trips that she made. What proof of joint residence. Our second son was born outside US, his birth certificate could be good proof?
 
If the two of you were were together, and you (the husband) were employed outside the US and not physically in the US, then you would be unable to satisfy the requirement of 3 years of continuous residency inside the US. It is impossible for all three of the following to hold simultaneously:
  • You were living outside the US for part of the 3-year period (seems to be the case, based on your posts).
  • Your wife was living with you during the entire 3 years (required in order to apply for naturalization on 3-year basis).
  • Your wife was living in the US during the entire 3 years (required in order to apply for naturalization).
Logically, your wife cannot both be living with you and living in the US, unless you are also living in the US.

Long-term employment outside of the US is a strong indicator that you do not, in fact, live in the US. Combined with the 313-day absence, the presumption under the law is that your wife abandoned continuous residency, and you would have to prove that she maintained it. Your foreign employment together with the logic above does not allow for a strong case that she maintained continuous residency. Since you're applying on the 3-year basis, it means that you also must prove that you resided in the US for those three years. Without the long absence, you might squeak by, since the burden of proof would then legally be on the US government. But that's not the case here.

By itself, any one of the factors could be overcome, but together, I just don't see it. The long absence is really killer because it guarantees that you will receive detailed questioning and you have to meet a burden of proof; the default is to deny anyone with a more than 180 day absence unless special circumstances are in your favor, but here special circumstances seem to be against you. Your son's situation (hope he is well) would be helpful as a special circumstance if you only had to prove one thing, but here you have to prove two contradictory things simultaneously. You could try anyway. I might be wrong.
 
Last edited:
Thanks for your reply. So if there is a break of over six months, then the continuous residence period starts again; we did file all the taxes, maintained accounts in US; and spouse was working for US company, not sure if it qualifies.

Do I need to wait for three years after we returned to US, that is August 2016; and apply after three years. I saw this on USCIS website; Chapter 3 part D volume 12 ( http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html); It says

"
3. Eligibility after Break in Residence

An applicant who is required to establish continuous residence for at least five years [14] and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement [15] may apply two years and one day after returning to the United States to resume permanent residence. [16]"

Does this mean that she is eligible after two years and one day after the return to US or she has to wait for three years before she can apply for citizenship, because it would be hard to convince the IO that we lived together outside the US.
 
That paragraph only applies to absences of one year or longer. It says so right in the paragraph. Also, as it says, you have to actually apply for naturalization (paying the fees) and get denied in order to take advantage of the benefit. So I'd say you have to wait the full three years.

Note, however, that as of 07/2015, your wife could apply on the five-year basis. I'm sorry I didn't see this at first, but now that I do, it could be your best option. Applying on the five-year basis would eliminate the troublesome joint residency requirement. You'd still have to prove continuous residency in the USA, but only for her, not for you. I think a good lawyer could pull it off given that you have a house and filed taxes. You could use your son's medical situation to justify the long absence. You'll need some excuse for why you gave birth abroad in the first place; lack of health insurance in the US (if true) would work nicely. Assuming you haven't moved between different states in the last three months, you can send in your application now (90 days before the five-year mark of her permanent residency).
 
Last edited:
You must log in or register to reply here.
Top