Applying for Naturalization while working abroad

[arc007]

Hi,
I got an employment based GC back in July 2007, along with my wife as dependent. We have 3 children who were born in the US and thus carry US passport. We were in the US up until September of 2010. I got a very lucrative job offer in UAE (non-US company, in fact UAE govt agency) and after much consideration and consultation with a lawyer we decided to go for it. Both me and my wife have the re-entry permits till Jan 2013 (for myself) and Mar 2013 (for my wife). However, since Sep 2010 till date, we have been visiting US every 5 months or so (never exceeded a trip outside the US for more than 6 months). We own a house in the US. Our address in the US has never changed (we still recieve our mails at that address). We have been filing US taxes as "married filing jointly" on time.

So, here is my dilemma...at that time when we consulted the lawyer he was very positive about being able to handle our case on the basis that we own a house in the US, and maintaining bank accounts here. We even kept our car in the US. Our residence is rented, but we kept the basement with us (and that is mentioned in the rental contract). Now that it is time to file for our naturalization the lawyer is hesitant and says that there are greater chances of denial. One option he suggests is to have my wife and children move back and register for the upcoming school year. While my family is living in the US, he says, it will be a strong case to make for myself and prove my ties to the US.

I need some expert advice, especially from the lawyers out here, as how does this sound like? I am also thinking about moving back to the US, but given the job market situation it rather seems a bit too much asking.

[Marusia_GC]

One of the requirements for naturalization is physical presence in the US for over 182 days per year. When you register at the airport for departure from the US and when you come back and enter the US, your GC is scanned. You also get a stamp in your passport at the entry point. USCIS has this information. I am afraid that even if you keep your property in the US, pay taxes, your family stays in the US permanently, you will not be eligible for naturalization unless physical presence requirement for 5 years in a row is satisfied. If you managed to stay 183 and over days per year in the US, you should be fine. If you visit the US for a short time every 5 months, you maintain keeping your GC, but this is not sufficient for naturalization.

[arc007]

One of the requirements for naturalization is physical presence in the US for over 182 days per year. When you register at the airport for departure from the US and when you come back and enter the US, your GC is scanned. You also get a stamp in your passport at the entry point. USCIS has this information. I am afraid that even if you keep your property in the US, pay taxes, your family stays in the US permanently, you will not be eligible for naturalization unless physical presence requirement for 5 years in a row is satisfied. If you managed to stay 183 and over days per year in the US, you should be fine. If you visit the US for a short time every 5 months, you maintain keeping your GC, but this is not sufficient for naturalization.

Thank you for the response. But, what I have seen so far as the naturalization requirements I did not come across the 182 days per year requirement. It is definitely new for me, and I will do some more research on that one. Do you happen to have a reference to this information?

The only thing that worries me is the "residency for at least 3 months prior to filing the naturalization application" clause in the requirements. Though, I am not too sure whether that means physical presence or just continuation of residence.

[Marusia_GC]

Thank you for the response. But, what I have seen so far as the naturalization requirements I did not come across the 182 days per year requirement. It is definitely new for me, and I will do some more research on that one. Do you happen to have a reference to this information?

The only thing that worries me is the "residency for at least 3 months prior to filing the naturalization application" clause in the requirements. Though, I am not too sure whether that means physical presence or just continuation of residence.

Physical presence for 30 months (more than 182 days/year) is the general requirement for N-400. Go to the USCIS website, then to Citizenship, then Citizenship through Naturalization. You will find the requirements. As for 3 months of living within the same State, I believe if you keep the same address, you should be fine.

[arc007]

Physical presence for 30 months (more than 182 days/year) is the general requirement for N-400. Go to the USCIS website, then to Citizenship, then Citizenship through Naturalization. You will find the requirements. As for 3 months of living within the same State, I believe if you keep the same address, you should be fine.

Oh, that one! I think we are alright in satisfying that requirement since it says about 30 months in the past 5 years with no absence greater than 6 months (at least that is how I interpret that). We had been residing in the US till Sep 2010 without any major break - except for a few weeks of vacation time every year.

Even our current absence is temporary, since the job that I have over in UAE is not going to last forever. And for those who are familiar with the visa regulations over here, they know that one cannot get permanent residency status ever. and as soon as your job is over you have 30 days grace period to leave the country.

[Jackolantern]

Working abroad for a non-US employer is a big no-no for naturalization. There's no way you're getting approved if you're still working there during the naturalization process. But you have a realistic (although not very good) chance of approval if you apply after having left that job and stayed in the US for a few months.

Even our current absence is temporary, since the job that I have over in UAE is not going to last forever.

Is it a contract job with a specific end date? If not, or if you extended the contract for a significant amount of time past the original end date, you'll find it hard to convince them that it was a truly temporary arrangement.

And for those who are familiar with the visa regulations over here, they know that one cannot get permanent residency status ever.

But they give visas that can be renewed over and over for a long time.

[baikal3]

Hi,
I got an employment based GC back in July 2007, along with my wife as dependent. We have 3 children who were born in the US and thus carry US passport. We were in the US up until September of 2010. I got a very lucrative job offer in UAE (non-US company, in fact UAE govt agency) and after much consideration and consultation with a lawyer we decided to go for it. Both me and my wife have the re-entry permits till Jan 2013 (for myself) and Mar 2013 (for my wife). However, since Sep 2010 till date, we have been visiting US every 5 months or so (never exceeded a trip outside the US for more than 6 months). We own a house in the US. Our address in the US has never changed (we still recieve our mails at that address). We have been filing US taxes as "married filing jointly" on time.

So, here is my dilemma...at that time when we consulted the lawyer he was very positive about being able to handle our case on the basis that we own a house in the US, and maintaining bank accounts here. We even kept our car in the US. Our residence is rented, but we kept the basement with us (and that is mentioned in the rental contract). Now that it is time to file for our naturalization the lawyer is hesitant and says that there are greater chances of denial. One option he suggests is to have my wife and children move back and register for the upcoming school year. While my family is living in the US, he says, it will be a strong case to make for myself and prove my ties to the US.

Looks to me like your lawyer gave you strikingly incompetent advice, particularly before you left.


First of all, you cannot file N-400 while residing abroad. Regardless of other issues (continuous residency, physical presence etc) you must first come back to the U.S. and RESUME residing in the U.S. before you can file N-400.

Even after you return for good, you will have problems with the continuous residency (your main problem) and the physical presence requirement (less crucial issue and easier to remedy, but eventually it will catch up with you). Regarding the physical presence requirement, let me clarify one piece of misinformation contained in Marusia_GC's post above. For regular 5-year cases, the physical presence requirement says ONLY that you must be physically present in the U.S. for the total of at least 30 months during the 5 year period before the date of filing N-400. There is NO "more than 182 days/year" provision in the physical presence requirement. See INA 316(a) "No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time.". See http://www.uscis.gov/ilink/docView/S...tml#0-0-0-7681 and a more detailed explanation in the USCIS Adjudicator's Field manual http://www.uscis.gov/ilink/docView/A...0-0-22854.html

The main problem for you is satisfying the continuous residency requirement. As far as I can tell, your absence from the U.S. from Sept 2010 to now (short visits back to the U.S. non-withstanding) has ALREADY broken your continuous residency and thus has reset your continuous residency clock. This break in continuous residency for you cannot be cured by moving your wife and kids back to the U.S. now.

The continuous residency requirement is a basic requirement for naturalization and it says that you must have "resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years [...] immediately preceding the date of filing" of your N-400.
There are some events that constitute statutory breaks or presumptive statutory breaks in continuous residency that are explicitly spelled out in INA 316 (b) (absences of more than 6 months but less than a year, and absences over a year, w/o an approved N-470). HOWEVER, there are other ways of breaking continuous residency apart from these. [It is a common misconception, often repeated by some even in this forum that "continuous residency= no trips abroad lasting over 6 months]
The relevant federal law and regulations (see 8 CFR 316.5(a) http://www.uscis.gov/ilink/docView/S...ml#0-0-0-19633) define the meaning of "residency" for the purposes of this requirement as "the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.” As the USCIS Adjudicator's Field Manual notes, "Every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied with the continuous residence requirement." See http://www.uscis.gov/ilink/docView/A...html#0-0-0-731 for a detailed discussion on the topic.


Accepting a foreign employment for a non-U.S. company/entity for an extended period of time is essentially guaranteed to be viewed as breaking continuous residency. Your argument that "Even our current absence is temporary, since the job that I have over in UAE is not going to last forever" is not going to be accepted by any IO, given the length of that employment and the fact that you did not keep a U.S. job during that time.
This factor will far outweigh the positive fact that you maintained ownership of a house back in the U.S. and retained unrestricted access to the basement in that house while renting out the rest of it.
Given the length of your absence since Sept 2010 (around 21 months by now), the fact that you rented(bought?) hosing abroad during such a long-term absence and the fact that your wife and kids were abroad with you until now, you won't be able to argue that having access to the basement in your U.S. house means that it was your principal actual dwelling place during that period.
Note that when you file N-400, you must disclose your overseas employment and the foreign address(es) where you resided during that time.

Note also, that having a re-entry permit only helps with preserving your LPR status, but does not help with preserving continuous residency for naturalization purposes.

However, IF you move back to the U.S. (and assuming your physical presence requirement is still OK at the time), you might still give a shot to filing N-400. The only thing you risk is money, and even if (as is most likely) your application is denied on the continuous residency grounds, this will not prejudice against you filing N-400 again later, once the continuous residency requirement is met. Your best hope with such an early filing would be getting a careless/incompetent IO at the interview, which is not that uncommon. Some IOs, because of carelessness, simply ignore all trips abroad that were below 6 months, particularly if it was just one isolated trip (they are supposed to scrutinize the application more closely if the see a chain of long absences, below 6 months each, separated by short visits back to the U.S.). If you get such an IO, you might just slip through and get approved.

But no IO, no matter how careless, will approve your N-400 if you file it while still residing abroad and before moving back to the U.S.

I need some expert advice, especially from the lawyers out here, as how does this sound like? I am also thinking about moving back to the US, but given the job market situation it rather seems a bit too much asking.

If you are looking for opinions from lawyers, this forum is definitely the wrong place. There are no lawyers here.

[BigJoe5]

If you are not referred to an Immigration Judge to fight to keep your greencards when you return to the U.S., and IF you waste the effort, time and money filing N-400s that will most likely be denied, THEN the best option is to utilize the remedy afforded under 8 CFR 316.5(c)(1)(ii) [it applies to either duration of break]. I am not going to tell you what it is because I want you to read it yourself. Failing to do your own research and fact-checking got you where you are now.

[arc007]

Thank you, for both of you replying in detail. It surely seems a big mistake on my part in not validating the lawyers' point of view before making the big decision. However, given the situation I see 2 options:

1. Have my family move back and apply for the naturalization. I'll be visiting US when it is time to apply, for biometrics and interview followed by a visit for oath.
In this situation there are greater chances of denial for me, but hopefully my wife will most likely go through. In case of denial, does IO take the green card back immediately?

2. And this seems more viable option, that is to return back to the US for good right away. Wait for 4 years and 1 day and then apply.

If for the first option the only thing at stake is money and time, then I am leaning towards that. At least I could say that I tried!

Any suggestion on reputable lawyer who can help me with my case. I am in Philly region.

Your time and effort to respond to me is much appreciated...

[cafeconleche]

If at least one of you (in this case, more likely your wife) gets citizenship, then you can even surrender your GC, continue working abroad (your family would move back to the UAE after your wife becomes a citizen and gets a passport, of course), and if you ever want to move to the US, your wife can sponsor you for a new GC.

[Jackolantern]

Thank you, for both of you replying in detail. It surely seems a big mistake on my part in not validating the lawyers' point of view before making the big decision. However, given the situation I see 2 options:

1. Have my family move back and apply for the naturalization. I'll be visiting US when it is time to apply, for biometrics and interview followed by a visit for oath.
In this situation there are greater chances of denial for me, but hopefully my wife will most likely go through. In case of denial, does IO take the green card back immediately?

2. And this seems more viable option, that is to return back to the US for good right away. Wait for 4 years and 1 day and then apply.

Regarding #1, it would be a more productive use of the money if you spent the $680 on lottery tickets instead of using it to pay the naturalization fee. You'll have a better chance of getting rich with those 680 tickets than having your naturalization approved while you're still employed abroad by a non-US entity.

But there is a solution between the extremes of #1 and #2 ... give up the UAE job, return to the US, wait a few months in the US without any extended trips (preferably at least 6 months), then apply. Once it's clear that you've severed those foreign ties and have settled down in the US, you might have a chance of approval (although still not a good chance).

In either case, if your naturalization is denied you still keep the green card unless there is some other reason to take away your green card, like a criminal record or immigration fraud.

[-me-]

Thank you, for both of you replying in detail. It surely seems a big mistake on my part in not validating the lawyers' point of view before making the big decision. However, given the situation I see 2 options:

1. Have my family move back and apply for the naturalization. I'll be visiting US when it is time to apply, for biometrics and interview followed by a visit for oath.

Bad idea, unless you want to willfully misrepresent the facts. You current job is outside the U.S. and you will have to put it on N-400. Then, considering your trips abroad and the length of stay, it's quite clear that you are not living in the U.S. Therefore, you are not eligible for naturalizaiton. Yes, your continuous residency will be under scrutiny by USCIS

In case of denial, does IO take the green card back immediately?

You still have the re-entry permit, so you may be good until Sep 2012 (or the latest - Jan 2013)

2. And this seems more viable option, that is to return back to the US for good right away. Wait for 4 years and 1 day and then apply.

It's a safe approach.

[baikal3]

In case of denial, does IO take the green card back immediately?

The denial of an N-400 does mean the loss of an LPR status and your GC is not taken away.
In rare cases, e.g. if some serious deportable offense came up during the N-400 adjudication, the IO will refer the case to ICE or to an immigration judge for formal GC revocation and removal/deportation proceedings. But that is a separate process.


By the way, the denial never happens at the interview itself. If an N-400 is denied, an applicant receives the denial letter by mail, where the legal reasons for denial are supposed to be explained, with citing specific INA/CFR provisions, and where an appeals procedure is explained as well.

[immlegal]

baikal3 - what a joke! you have spread your WRONG concocted interpretations of law in multiple threads (even though I acknowledge that the facts of this case are very difficult for naturalization).

and i am tickled to see bigjoe5 follow your posts, and all his posts are so hilarious - sounds like an F student that wants to be a Professor.

What a tag team the 2 of you!

[baikal3]

baikal3 - what a joke! you have spread your WRONG concocted interpretations of law in multiplee threads. and i am tickled to see bigjoe5 follow your posts. what a tag team!

And what exactly makes you such a big expert??

FYI, BigJoe5 was an an IO and an adjudicator for USCIS, so he does know what he is talking about.

[immlegal]

Not an expert. But not being a lawyer, do not rely on my own "research" to profess opinions.

In such cases, I have consulted with a few attorneys and got a consistent opinion. Also check out answers to similar situations on xxx.com. See the successful outcomes in all such cases, notwithstanding your opinion and may be it's time to change your opinion?

As for bigjoe5, I am glad about the "ex" part of ex-IO.

[rick92]

Opinions are not insults. If you guys want to debate what is being said,I suggest you bring up some legal framework to the response. It isn't bad, it is healthy to debate as long the two people respect each other in every way.- If anybody uses insults, or bullying, or is demeaning, then the whole forum concept is lost.-

[immlegal]

http://forums.immigration.com/showth...00-from-abroad

Please follow the above link to read baikal3's post on Jul 30, 2012. (S)He audaciously attributes the outcome of a case referred therein to an incompetent IO or the applicant misrepresenting. In reality, this is in fact the correct outcome based on the facts presented.

There is also enough literature from qualified attorneys on the internet that addresses such cases.

baikal3's post is not just a disservice in propagating misinformation on multiple threads, but maligns others due to his/her own naivete. I can only hope that several other readers who have acknowledged his/her "contributions" have done additional research.

In stead of reporting my posts (which is again hilarious to me), (s)he should apologize and correct the misinformation (s)he has posted in the various threads.

[rick92]

I have seen your posts and I can see some sarcastic notes and I can assure you that this is not the intent of this Forum. You guys are going to have to bring the tone down between each other. This is a forum where OPINIONS most of the time are expressed so that the participants get an idea on how they should form their decisions in regards to their USCIS process. There are no legal opinons expressed here unless they come from Rajiv S Khanna who is a licensed private immigration attorney and host of this Forum so therefore, Your HELP is greatly appreciated to keep your objectivity at all times without demeaning anyone's participation. Please, lets try to help each other. This is the ONLY way to MOVE FORWARD.-

[arc007]

Just to update as what happened to our case...contrary to the recommended path suggested by many over here to postpone the filing till we are back to the US for good, I decided to go ahead and try the process. So, we filed for our N-400 in early July. My wife stayed back in the US after her biometrics were done. We had our interviews in mid October and both of us were recommended for approval. Unlike, what I was expecting, the interview went very smoothly. The IO noticed and confirmed that I was working and living abroad at the moment but he moved on after verifying that I had no single trip for more than 6 months.

After about 4 days of interview, my wife got scheduled for oath and was sworn in. While, I had to wait for about 40 days before I was scheduled for the oath. It took a total of 3.5 months for my wife from the time of filing till oath. Whereas for me it took about 5 months.

I believe, the lawyer was not that incompetent after all. I was just being more skeptical about the whole situation. The lawyer was pretty confident that even if the IO had gone down the path to question my job and all that, he had a good case to respond with given that my wife was staying in the US and I was just commuting to work - albeit a thousand miles commute!

I would just like to iterate though, everyone's situation is different. One should do a good homework and plan things out well before deciding to take up a commitment outside of the US - preferably speak to a good attorney. Stick to the plan, and not get panic, or start asking around. The people who are responding to your queries are not familiar with every detail of your case and thus can only give a generic point of view.

[surya4]

Congrats ! and Glad to hear that everything went smoothly.

I have a question though, in your N400 application what dates did you add for Entry and Exit? I think you applied your N400 from outside US and i am in same boat as well. I left US end of September and planning to apply N400 abroad but i am not sure what to add for the last entry date.

Just to update as what happened to our case...contrary to the recommended path suggested by many over here to postpone the filing till we are back to the US for good, I decided to go ahead and try the process. So, we filed for our N-400 in early July. My wife stayed back in the US after her biometrics were done. We had our interviews in mid October and both of us were recommended for approval. Unlike, what I was expecting, the interview went very smoothly. The IO noticed and confirmed that I was working and living abroad at the moment but he moved on after verifying that I had no single trip for more than 6 months.

After about 4 days of interview, my wife got scheduled for oath and was sworn in. While, I had to wait for about 40 days before I was scheduled for the oath. It took a total of 3.5 months for my wife from the time of filing till oath. Whereas for me it took about 5 months.

I believe, the lawyer was not that incompetent after all. I was just being more skeptical about the whole situation. The lawyer was pretty confident that even if the IO had gone down the path to question my job and all that, he had a good case to respond with given that my wife was staying in the US and I was just commuting to work - albeit a thousand miles commute!

I would just like to iterate though, everyone's situation is different. One should do a good homework and plan things out well before deciding to take up a commitment outside of the US - preferably speak to a good attorney. Stick to the plan, and not get panic, or start asking around. The people who are responding to your queries are not familiar with every detail of your case and thus can only give a generic point of view.

[arc007]

Congrats ! and Glad to hear that everything went smoothly.

I have a question though, in your N400 application what dates did you add for Entry and Exit? I think you applied your N400 from outside US and i am in same boat as well. I left US end of September and planning to apply N400 abroad but i am not sure what to add for the last entry date.

We took a short trip back to the US to file for N400 and then left after once the receipt was received. At the interview, we reported the trip(s) outside of the US after filing.

I guess, you can file from abroad only if you are working with an approved N470

[curiousGeorge]

When you register at the airport for departure from the US and when you come back and enter the US, your GC is scanned. You also get a stamp in your passport at the entry point.

This isn't entirely true.

I have never had my Green Card scanned when departing the US, only when entering the US. And I have never received a stamp at my destination country, only when entering the US. USCIS must use the passport scan information to determine your physical presence, not the passport stamps, or Green Card scan info.