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/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9898.html#0-0-0-7681 and a more detailed explanation in the USCIS Adjudicator's Field manual
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22854.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/...1261/0-0-0-30960/0-0-0-31016.html#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/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22483.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.
