Complicated situation: please advice

F

firstquestion

New Member
Hello everyone,

my situation is as follows: I received GC in 2001 together with my wife (based on her employment-based petition). 6 months later, she went to Europe (not out home country!) to work on a research project. I enrolled in school there (since it was free and I was not eligible to work). I stayed there from Feb. 2002 till early 2006 with regular short trips back to the US (some less than 6 mos and a couple of b/w 6 mos and 1 year). Couple of dates are hard to verify as the stamps are completely illegible.
I have never been questioned while entering the US.
We filed joint taxes from foreign address but as US residents (I did not have any income while abroad). I did not receive any residency there or even learned the language. We always had US bank accounts and CCs, and we kept our small condo for a while but eventually sold it and changed our address to my wife's parent's (they are US citizens living in the US).
I always planned to come back to the US and did so alone when my wife decided to prolong her work contract in Europe yet again. At that point we separated and later divorced (she stayed there and voluntarily gave back the GC).

Since returning in 2006, I have been living and working in the US (now for nearly 5 years) with short infrequent trips abroad to see my son (who was born in the US and is a US citizen) - and I have been planning to apply for citizenship in 2011.

Can the question of breaking the residency THEN come up at the interview? Do I have to prove that I did not? (it would be entirely subjective ...thus a grey area!) Does it still matter? What is the worst case scenario here: can my green card be revoked at the interview??

Would really appreciate any EXPERT advice and similar experience.

Thanks all!
 
firstquestion said:
Hello everyone,

my situation is as follows: I received GC in 2001 together with my wife (based on her employment-based petition). 6 months later, she went to Europe (not out home country!) to work on a research project. I enrolled in school there (since it was free and I was not eligible to work). I stayed there from Feb. 2002 till early 2006 with regular short trips back to the US (some less than 6 mos and a couple of b/w 6 mos and 1 year). Couple of dates are hard to verify as the stamps are completely illegible.
I have never been questioned while entering the US.
We filed joint taxes from foreign address but as US residents (I did not have any income while abroad). I did not receive any residency there or even learned the language. We always had US bank accounts and CCs, and we kept our small condo for a while but eventually sold it and changed our address to my wife's parent's (they are US citizens living in the US).
I always planned to come back to the US and did so alone when my wife decided to prolong her work contract in Europe yet again. At that point we separated and later divorced (she stayed there and voluntarily gave back the GC).

Since returning in 2006, I have been living and working in the US (now for nearly 5 years) with short infrequent trips abroad to see my son (who was born in the US and is a US citizen) - and I have been planning to apply for citizenship in 2011.

Can the question of breaking the residency THEN come up at the interview? Do I have to prove that I did not? (it would be entirely subjective ...thus a grey area!) Does it still matter? What is the worst case scenario here: can my green card be revoked at the interview??

Would really appreciate any EXPERT advice and similar experience.

Thanks all!
Click to expand...

You become (or became) eligible to file for naturalization under the regular 5 year rule 4 years and 1 day AFTER returning to the U.S. AFTER the last long trip over 6 months long. 8 CFR 316.5(c)
 
Last edited by a moderator:
They don't care about trips that occurred more than 5 years before you apply (you have to list them, but they don't affect your eligibility).

You returned in early 2006, so apply in early 2011 and you'll be fine. Maybe you could even apply this month, taking advantage of the 90-day headstart for continuous residence (you're allowed to apply 90 days before completing 5 years of continuous residence).
 
Last edited by a moderator:
Jackolantern said:
They don't care about trips that occurred more than 5 years before you apply (you have to list them, but they don't affect your eligibility).

You returned in early 2006, so apply in early 2011 and you'll be fine. Maybe you could even apply this month, taking advantage of the 90-day headstart for continuous residence (you're allowed to apply 90 days before completing 5 years of continuous residence).
Click to expand...

He does not have to accumulate another five years thus the 90 day early filing is not appropriate. He only needs to wait 4 years and 1 day rather than 4 years and 9 months because he originally got LPR status in 2001.
 
The problem with the 4 year plus 1 day rule is that they may still ask for evidence of ties to the US during that last year of absence (this has actually happened to people on the forum). If he waits until 5 years minus 90 days since that last long trip, which he probably has reached already, he would be free and clear of having to show evidence of residence during that last long trip.
 
Firstquestion,
I agree with Jackolantern. My own case is an example of his argument.You can see my posts. I had GC for 18 years with multiple absence including two re-entry permits. I had only stays of few days in USA every year . But in the last 5 years i ensured i had full physical presence and met all requirements. There was a delay but i was successful in naturalization.

Apply 5 years minus 3 months and you will be get your USC.
 
arsha said:
Firstquestion,
I agree with Jackolantern. My own case is an example of his argument.You can see my posts. I had GC for 18 years with multiple absence including two re-entry permits. I had only stays of few days in USA every year . But in the last 5 years i ensured i had full physical presence and met all requirements. There was a delay but i was successful in naturalization.

Apply 5 years minus 3 months and you will be get your USC.
Click to expand...

Please describe what they put you through, for the benefit of the OP.
 
Jackolantern said:
The problem with the 4 year plus 1 day rule is that they may still ask for evidence of ties to the US during that last year of absence (this has actually happened to people on the forum). .
Click to expand...
The issue then becomes if those people actually applied under 4 years + 1 day rule by specifically mentioning the appropriate rule on N-400 application instead of just checking off 5 year rule.
 
Thanks everyone!
I also did not have any concerns up until I saw an old tread somewhere on this forum where the guy has been away for 4 years after green card (but over 10 years in the US since), the he has been advised to seek help of a lawyer as he would be subject to green card revocation as he has clearly abandoned the PR status....
Just to confirm: I do not need to collect any proof that I maintained the ties, etc and explain anything if I apply 5 years after the last long absence?
 
firstquestion said:
Thanks everyone!
I also did not have any concerns up until I saw an old tread somewhere on this forum where the guy has been away for 4 years after green card (but over 10 years in the US since), the he has been advised to seek help of a lawyer as he would be subject to green card revocation as he has clearly abandoned the PR status....
Click to expand...

Was that guy outside the US for 4 years straight, without a single trip back to the US during those 4 years? If yes, then he would have some explaining to do and he could potentially be in trouble.

But your situation is not like that. You won't need to prove or explain anything for trips that ended over 5 years before you applied.
 
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