"Constructive Residency" clause for section 319(b) applicants

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skcurious

Registered Users (C)
My wife qualified for expedited US citizenship under section 319(b) - Permanent Resident spouses of US ctizens posted abroad and serving US intersts.

319(b) waives off all residency/physical presence requirements for GC holder spouses and hence she qualified although she has been out of USA for 4 years.

My question now is that will the same clause protect her at the port of reentry into USA when she goes for her interview appointment and enable her a smooth entry.

I think it is called "constructive residency" clause.

USCIS was aware of her absence when they approved her application for US citizenship.

Thanks
 
???? :confused: If she was already "approved", why has she got to come to the US for an interview? Sounds to me like she has not yet been approved, unless you mean she is coming back for oath?

Presumably, since she must still be an LPR to qualify for 319(b) benefit, she has a reentry permit. If not, I think there could well be problems ahead.

319.2(a)(2) At the time of examination on the application for naturalization, be present in the United States pursuant to a lawful admission for permanent residence;​

Maybe its time to consult a professional.
 
Interview Call

Approved means she has received a naturalization interview call.

At the time of applying for her citizenship, her reentry permit had expired. too.

Section 319(b) waives all residency & physical presence requirements since the US citizen spouse is posted abroad in US interest.

The question now is - can she appear for the interview by entering USA on her green card.


boatbod said:
???? :confused: If she was already "approved", why has she got to come to the US for an interview? Sounds to me like she has not yet been approved, unless you mean she is coming back for oath?

Presumably, since she must still be an LPR to qualify for 319(b) benefit, she has a reentry permit. If not, I think there could well be problems ahead.

319.2(a)(2) At the time of examination on the application for naturalization, be present in the United States pursuant to a lawful admission for permanent residence;​

Maybe its time to consult a professional.
Click to expand...
 
By approved, I mean, naturalization interview call

If USCIS has scheduled an interview, this would normally mean that they considered her a valid status LPR, inspite of her extended absence - because of provisions of section 319(b).

So, should entry for the interview be a problem now?
 
She probably would have to bring supporting documentation to the port of entry to show that she qualifies for 319(b).

You should call or visit a consulate to find out what rules apply. If she needs something extra like a Returning Resident Visa they should let you know.
 
Supporting Documentation - Yes ofcourse

However, returning resident permit is for residents who were abroad for reasons beyond their control which is not the case here.

EXPEDITIOUS NATURALIZATION FOR DEPENDENT SPOUSES (INA §319(b); 8 U.S.C. 1430(b); 8 C.F.R. § 319.2; DOD DIR 5500.14)

A spouse married to a United States citizen, whether military or civilian,

who is assigned overseas by the United States government, may qualify for

expeditious processing of an application for naturalization. Lawful permanent resident (LPR) status is still required; but all residency and physical presence requirements are waived. The overseas assignment must be one year or more after taking the oath of naturalization. Marital unity is still a requirement.
 
The physical presence & continuous residence requirements for naturalization are waived, but that DOES NOT MEAN the requirement for holding LPR are waived. Go reread 319.2 again - its spelled out explicitly.

The normal way 319(b) is expected to be invoked, is by someone whose USC spouse is imminently to be posted abroad. Your situation is different, because it seems you have been posted abroad for a long time already - long enough for your LPR status to lapse. The fact that you have been called for interview is completely irrelevant to whether your case will be approved or denied. There are many documented cases of people being called for interview despite glaring problems with eligibility; usually the only time cases are rejected during submission, is due to incorrect fees, miscalculated residency dates and similar. An interview is the primary opportunity for an IO to decide how to adjudicate the case, and my belief is this one could go either way.

With a bit of luck, you will be admitted for entry to the US on the basis that you have an interview letter from USCIS. Possibly you'll end up with a deferred inspection, however its really hard to speculate what might happen.

As I suggested before, you need to consult a lawyer who is familiar with the nuances of 319(b).
 
Preservation Of Residence

Here is what I found :

Sec. 319(b)(1) of the INA provides preservation of residence benefits for spouses of U.S. citizens who fit the definitions of Secs. 316(b) and 317 1) who are regularly stationed abroad in the qualifying employment and 2) who declare a good faith intention to take up residence in the U.S. upon termination of the U.S. citizen spouse's employment abroad.
 
Conditions for maintaining LPR

The conditions for maintaining LPR follow :

The Act defines the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” (See section 101(a)(20) and section 318 of the Act). The "not having changed" part of the definition recognizes the fact that at any time after the granting of a lawful permanent residence the person on whom it was conferred may forfeit that status by his or her actions. For example, any departure from the United States under an order of removal terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for naturalization purposes, even if the applicant happened to retain possession of the original PRC. On the other hand, an applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge in removal proceedings can satisfy the residence and physical presence requirements in the same manner as any other applicant for naturalization. (See paragraphs (3) and (4) of 8 CFR 316.5c).) Other examples of a presumption that an applicant has abandoned lawful permanent resident status would be evidence that the applicant voluntarily claimed nonresident alien status to qualify for special exemptions from income tax liability, or failed to file federal or state income tax returns because he or she considered himself or herself to be a nonresident alien. (See 8 CFR 316.5(c)(2).) In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present.
 
skcurious said:
In verifying that the applicant has not relinquished permanent resident status prior to applying for naturalization, it is necessary to consider the entire period from the original admission to lawful permanent resident status until the present.
Click to expand...

This exactly illustrates my point - its up to USCIS to decide whether or not you have retained LPR status during your extended period outside of the US. Out of curiosity, were you married to the same USC prior to your departure abroad, or did you marry them subsequently? I'd bet the answer to that question goes a long way toward establishing your intent when you initially departed the US.

Anyway, this is all interesting stuff to debate. When is your interview? I'd love to hear how it all works out.
 
LPR Status

I was already married.

One of the main requiremenst of section 319(b) is that the spouse should have a continuous residence with the US citizen spouse for 3 years.

I have two main points :

a) They cannot give an expedited citizenship with one hand, waiving residency requirements and take it away with the other hand by not allowing reentry.

b) Oveseas job, to qualify under 319(b), is in US interest.
The person posted is considered to be not having a choice and the family has to follow.
 
skcurious said:
I was already married.

One of the main requiremenst of section 319(b) is that the spouse should have a continuous residence with the US citizen spouse for 3 years.
Click to expand...

Thats good.
I don't think you needed 3yrs continuous residence, but you do still need 3yrs continuous marriage.

skcurious said:
I have two main points :

a) They cannot give an expedited citizenship with one hand, waiving residency requirements and take it away with the other hand by not allowing reentry.
Click to expand...

Sure they can! The way I've seen 319(b) used in the past, is the spouse gets posted, and the LPR files for expedited citizenship prior going abroad. The oath is usually scheduled to fit in the 30-45(?) day window during which the LPR is required to naturalize and subsequently leave the country.

Your situation is obviously different, and doesn't quite fit the model that USCIS usually apply.

Found this. Might be interesting.
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=d6a6dbafcd1a7736c553331d08c0f9ee

skcurious said:
b) Oveseas job, to qualify under 319(b), is in US interest.
The person posted is considered to be not having a choice and the family has to follow.
Click to expand...

Well there is always a choice, but obviously the family wants to follow asap.
 
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boatbod said:
Thats good.
I don't think you needed 3yrs continuous residence, but you do still need 3yrs continuous marriage.
Click to expand...

You don't need 3yrs of continuous marriage under s319(b). I got my citizenship under s319(b) having been married less than 2 years and having my GC for less than 18 months.

boatbod said:
Sure they can! The way I've seen 319(b) used in the past, is the spouse gets posted, and the LPR files for expedited citizenship prior going abroad. The oath is usually scheduled to fit in the 30-45(?) day window during which the LPR is required to naturalize and subsequently leave the country.

Your situation is obviously different, and doesn't quite fit the model that USCIS usually apply.

Found this. Might be interesting.
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=d6a6dbafcd1a7736c553331d08c0f9ee

Well there is always a choice, but obviously the family wants to follow asap.
Click to expand...

I applied before my spouse and I left the US so I can't advise from personal experience on the LPR re-entry issues. However, our organization has provided some guidance to US LPRs working abroad for more than 2 years at one time. Their advice is that a LPR should be able to reenter the US with an expired reentry permit as long as:

- they had a valid re-entry permit when they left the US
- they can demonstrate that they were sent overseas by their overseas employer
- they can demonstrate that they intended to return to the US on completion of the assignment (by showing ties to the US)

They also warned that it is likely that the person would be subject to secondary inspection at the border so to expect some delays especially if connecting to an internal flight in the US.

This information is only from an inter-organization memo so don't consider it official information but it may provide some encouragement that your spouse will be able to re-enter as an LPR.
 
Maintaining LPR Status

Thanks JontyMorgan.

My case is even stronger.

I did have a valid rentry permit when I left.

We always filed taxes and did not sell our home.

Moreso, the interview call will be based on satisfying the criteria of 319(b) which means US citizen spouse working overseas for a US employer serving US interests.

Finally, don't you think that the interview appointment letter, by itself, is a permission to enter USA. Is it not almost like a summons to appear before an immigration officer. After all, we gave the true dates of departure and absence from USA when I applied under 319(b).

- they had a valid re-entry permit when they left the US
- they can demonstrate that they were sent overseas by their overseas employer
- they can demonstrate that they intended to return to the US on completion of the assignment (by showing ties to the US)
 
Boatbod & Jontymorgan, let us give the closing arguments

There are 3 steps :

a)
Going by the specific section of the Act, there's no physical presence requirement on US soil for the USC's alien spouse to qualify for expedited naturalization - except during the interview and oath ceremony.[/B] Granting of course that the absence is due to the USC spouse being regularly stationed abroad working for the US firm or corporation recognized by the Attorney General in accordance with 319(b), a good faith intention to live in the US after such deployment, and all other regular naturalization qualifiers are met.

b) The only item to be debated in the act is then:
(2) At the time of examination on the application for naturalization, be present in the United States pursuant to a lawful admission for permanent residence; c)

c)The third line of argument closes the loop nicely :
Conversely, if you retain close ties to the United States, you can likely keep your green card despite an absence of more than six months. Permanent residency in the U.S. is a question if intent, and intent is best evidenced by documenting your permanent ties to the United States.
 
This link is worth a look ...

http://www.legalserviceindia.com/immigration/us_greencard_holder.htm

The heading is :

Preserving Residence as a US Green Card Holder While Residing in India

The last para states :

Spouse of Permanent Resident Employed Abroad
An exception to these requirements is for time spent outside the US during which a person is considered to be constructively present in the US. Under the US Immigration and Nationality Act, the residence requirements are waived if the applicant is the spouse of a US citizen who is (i) a member of the U.S. Armed Forces, or (ii) an employee or an individual under contract to the US Government, or (iii) an employee of an American institution or research recognized by the US Department of Homeland Security, or (iv) an employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the US, or (v) an employee of a public international organization of which the United States is a member by law or treaty, or (vi) a person who performs ministerial or priestly functions for a religious denomination or an interdenominational organization with a valid presence in the US. If the citizen spouse is employed for at least one year according to an employment contract or order, then the residency requirements are waived. As per the applicable law, the citizen spouse’s employment abroad must be for a period of at least one year. If this requirement is met, the naturalization application can be filed before the employment abroad begins. There is no minimum required residence in the US or a minimum period for which the applicant must have been a permanent resident. The applicant must, however, declare his or her intention to reside permanently in the US upon the termination of the spouse’s foreign employment.
 
Elligilibility for citizenship under section 319(b)

I have a few general questions on the topic : Spouse of a US Citizen getting citizenship under section 319 (b) (Expeditious Naturalization).

Here are my questions: Can you please help:

1. Any details or examples on the type of company the USC needs to be working for in order for the spouse to quality for citizenship under this clause ? Do companies like Intel, Microsoft, IBM, Texas Instruments, Qualcomm qualify ?

2. I take it that companies such as Infosys, Wipro, etc that have branches in U.S (but headquartered outside U.S) do not qualify. Correct ?

3. Does the INS require the U.S citizen to have worked in the U.S.A facility of that company for a certain minimum period of time before going to another country to serve for that company ?

4. Any other comments or suggestions ?

THANKS A LOT !
 
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