Citizenship Eligibility question for 12 year old who wants to overstay 6 months

[Ajay Mittal]

We got our green cards (husband, wife, daughter 1 and daughter 2) in Sept. 2001 (passports stamped on Sept 9, 2001). We will be due for filing for citizenship July next year.

So far All of us have maintained all our residency requirements including no stay longer than 180 days outside US. My wife made one trip of 2.5 months in the 5 years outside India.

However my elder daughter had to leave for India to study abroad for 2 years in May 2004 in Grade 7 and 8th (age 13 years). This happened because I became unemployed after mass layoff from my company. Due to unemployment status, lack of stability due to likely movement across towns in short term contractual jobs, etc., I felt that in order that her education does not get disturbed, I decided to send her abroad. She joined a school in New Delhi in 7th grade. Her New York school was informed that she was going temporarily and a discharge was officially obtained. In the 1st year (2004) she went abroad as follows:

Year 2001 Sept 10th- Obtained her Green Card.

Year 2003:
-> 2.5 month visit with her mother abroad in May and June

Year 2004:
->1 month (Jan) to get admission in school in India, then she came back to US to complete her schooling in US (stayed in US for about 5.75 months)
->she went abroad for 5.5 months and came to US for about 10-12 days in winter vacations (December),

Year 2005
->she went abroad for 4 months (Jan- April) and came back to US for < 2 months (May & June) during summer vacations
->she went abroad (June 2005) and wants to stay for 9.5 months (1st time she will be breaking the 6 month rule and not want to return in December 2005) to return in mid April 2006 as it is vary taxing for her to return every 6 months especially since her winter vacations are only for a week.

Somebody I met advised that it may not be necessary for children to travel 6 monthly as long as they travel yearly particularly when she has gone for study purposes and her parents maintain their residency and citizenship applicability status. I am not sure about this.

Question 1- My question is can she return in April 2006 and not jeopardize her citizenship application status in 2006 when she completes 5 years?

Question 2- Does continuous physical stay in US includes the period when an individual is traveling abroad but with no visit outside for more than 180 days?

Question 3- Is a continuous physical stay required for 2.5 years out of total 5 years?

Question 4- Is a child going for educational purposes given any special status? Does any form need to be filled? I filled none so far as she was coming back within 6 months. Moreover we have copies of correspondence with US school where she was discharged based on evidence of admission abroad. According to US law, a student cannot be discharged from school unless a student is admitted in another school whether US or abroad.

Thanks a lot in advance for all advice and help. I must arrange for her ticket in next 10 days if she must return within 6 months.

Ajay
Work: 516.562.7359
Email: ajay.mittal@gmail.com

 

[sg_orl]

Only you and your wife will apply for naturalization. Children under 18 do NOT apply for naturalization. On the day of your or your wife's naturalization oath, if your daughter is under 18 and is living with you in the US, she will be automatically a US citizen. You will be able to apply for her US passport along with you and you may want to file N-600 for her to get the Certificate of Citizenship as a documentary proof of her US citizenship.

In the meantime, she needs to maintain her green card just like any other permanent resident. All visits abroad ned to be temporary in nature and preferably less than 6 months. Visits that are more than 6 months but less than 1 year fall under grey area and most of the times require secondary inspection at the POE while coming back. She will need documentary proof of why the visit was long and she never intended to abandon her permanent residency. All visits over 1 year with no re-entry permit will be considered that she had abandoned her green card.

Why don't you bring your daughter back to US and put her is school here? That would take care of all these issues.

 

[Ajay Mittal]

Sg_orl, thanks for the reply.

I am planning to get her back in US school in class 9th April 2006.
But she needs to complete her 8th grade and has to be in India until April 8th by which time her final examinations will be over.

A question- I was under the impression that if the visit out is less than a year the green card remains valid but you mention that over 6 months, it can create a close scrutiny situation at the port of entry. Since she normally travels alone, would her telling them at POE that she went abroad temporarily for education purposes and is returning to US to continue further education be a good enough explanation?

Thanks again for your immense help.

Ajay

 

[sg_orl]

It can work. Generally, visits less than 6 month attract little attention and are considered that you are coming back from a temporary visit from abroad. As permanent resident you are supposed to live and work in the US permanently. Visits abroad need to be temporary in nature with a fixed date of return. I have read about green card holders getting a hard time if they disclose that the took a permanent job outside the country. Visiting US once a year is NEVER enough to maintain a green card. That's a myth! I know of someone who did it for a few years and got into trouble at POE some time back. They took her green card away and send her back to India.

Anyway, I think your daughter should be ok. She should have a documentary proof of her completing the 8th grade from India. She should carry some additional documentation from the new school that she will be attending in the US as well. You need to to prepare her to answer why she was attending a school in India while her family is living in the US. Make sure that she emaphizes that it was a temporary arrangement due to a certain family situation you all travelled to India and since it was in the middle of the school year you all wanted her to complete the 8th grade there before starting the hight school in the US.

You should also send her copies of some addtional documents to prove that her family is in US, i.e. copy of your house ownership/rental agreement, utlities bill, copy of bank statement/credit card bill, copy of your last income tax return, etc. She may not have to show these, but it will be good to have, just incase an officer gives her a hard time. Have her keep these in a separate file for just incase use. These documents show that her immediate family is in the US and she has strong ties to US.

Good luck!