Citizenship Eligibility Question

H

hakbrk

New Member
It looks like this forum has some very smart people on it so I'm hoping for some opinions regarding my wife’s current situation. Hopefully I can explain it in a clear manner as at times the story seems to get confusing.

I am a US citizen by birth.
My wife and I met and were married while I was working overseas. She applied for and received her LPR status in 2002. We have two kids one is my biological son and the other her biological and my adopted daughter. Her residency in the US started in 2002 and then in 2004, I was transferred overseas for what was at the time to be a one year temporary assignment. We made sure to return home within the 6-12 month limit so she could maintain her LPR status. As my one year temporary assignment grew in duration we were advised one time upon entering the US that she really needed to get a Re Entry permit. We did that and have continued to return home on home leaves. We have owned a house in the US for the last 2 years and still maintain all our utilities, bank accounts, drivers’ licenses etc. I have continued to file my US taxes. My company is a US company, although they have recently relocated our headquarters outside the US. My worry is there seems to be no option for me to transfer back to the US anytime soon and her re entry permit will expire in about a year. I am sure she can meet the 30 months physical presence (not continuous) in the US over the last 5 years, but there will obviously problems with the residency requirements. I'd be interested to hear some thoughts from you guys if there is any chance she could apply for her US citizenship? I think it sounds like a very long shot at best and I am not sure I want to donate the $700. Probably just wishful thinking but I sometimes convince myself that the fact that I am overseas due to employment reasons, we have a house, and we pay taxes, I do wonder if it is possible. If the citizenship route is a no go I am curious what I do when her permit expires? I don't think that is something that can be renewed; I guess she would have to be sure and return to the US every six months although from the little bit I know that is not even a sure thing. Any thoughts are appreciated.
 
Without knowing the exact pattern of absences it's hard to say. Since you say she definitely has more than 30 months in the US in the last 5 years I guess she has a shot at it. Hopefully you filed the taxes "married filing jointly" so she can claim she filed her taxes and no tax is due.
 
If she applies while she is still traveling overseas for extended periods, it is almost certain she will get denied, unless the nature of your employment is such that she can qualify for expedited citizenship under Section 319(b).

If she does not qualify for 319(b), she can try to apply after the extended travel has stopped. But we cannot predict the outcome because determinations of continuous residence are the discretion of the IO. However, if she waits for 3 years minus 90 days after the end of the last long trip, the extended absences will be completely out of the picture and won't affect her eligibility (assuming she is still married to you).

She should be able to obtain another reentry permit, but it may be for just 1 year because it is the second permit and she already spent an extended time outside the US before obtaining the first permit.
 
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Yes I have been filing taxes as married filing jointly. As for the pattern of absence, for the most part I am allowed one home leave a year for one month. For various reasons we have averaged about two trips per year usually two or three weeks each. Would it be any use to set up an Infopass appointment and let USCIS know what are situation is and see what they think?
 
hakbrk said:
Would it be any use to set up an Infopass appointment and let USCIS know what are situation is and see what they think?
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No, that would be useless. Unless it is absolutely clear-cut, they're going to tell you to apply. They have been sued before because people went to them to ask about applying for something, the officer told them they are ineligible, the people didn't apply, and then the people later find out they indeed were eligible (sometimes years later), and are angry because they suffered the consequences of not applying, including becoming illegal aliens or losing eligibility for a green card or citizenship.
 
I can see that as the Green Card Process was filled with misinformation. I guess the Section 319(b) route would be the way to go. Only issue would be if my company would meet the requirements. Probably need to get a knowledgeable lawyer to help me out with this one.
 
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