Continuous residence and Physical Presence

[Marjolaine]

Hi,

I have obtained my green card in november 2003 and have been physically present in the US leaving only the country for short vacation trips. I will be filing my citizenship application in July 2008.

I will need to relocate to Europe as of January 2008 to join my fiance. I am planning to travel back every 2 months to the united states to maintain my residence.

Here are my questions:

1) If I travel to the US every 3-4 months and stay for 1 week is that sufficient to maintain my physical presence.
2) If I file the application end of July 2008, am I required to be in the US from July onward.

Thanks in advance for any guidance you can provide.


M.

 

[Jackolantern]

1) No. For citizenship, they look at the totality of your presence inside and outside the US, not just whether any single trip is more than 6 months.

2) You don't need to be in the US all the time after you file. But you should be inside the US for more time than you are outside. And continue to keep your US home (whether rented or owned) throughout.

 

[boatbod]

1) If I travel to the US every 3-4 months and stay for 1 week is that sufficient to maintain my physical presence.

Unfortunately not. Your pattern of travel will be very obvious to the IO during interview, and they will start questioning you about your residence and employment etc. Will you be able to prove your trips to Europe are temporary in nature? Will you be able to demonstrate strong ties to the US? (Usually something more substantial than just having bank accounts & credit cards)

2) If I file the application end of July 2008, am I required to be in the US from July onward.

You are free to continue traveling as before, but you should bear in mind this is a sensitive period that will be examined closely by the IO during interview. For the easiest interview, you want to be able to show you reside & work in the US full-time.

 

[Marjolaine]

Thanks for your prompt responses. It is a mind-boggling dilemma. I just got engaged to a French man and the prospect of being separated for another year is not pleasant.

Does the IO take into consideration spouses situations i.e one national living in the US and the other in France hence trips are required. We are planning to get married in April 2008.

Regarding the strong ties with the US, I own two properties in the US. One is my primary residence and the other is a rental property. I will also need frequent trips to manage the properties. I am not thinking of selling them anytime soon.

In addition, my job got eliminated and I have the following options:

1) Take another internal job that is based in NY and be separated from my fiance to fulfill all the physical presence requirements. I am planning in this case to telecommute out of France occasionally until I file for my citizenship. In this case when should I be in the US to have an easy interview? Is it all the time preceding the interview date as well? If I file in July on average how long does it take to get notified for an interview.
2) take my termination package and move to France to be with my future husband. I would be traveling back and forth to ensure that I don't exceed the 6 months limit. What would you recommend for this scenario.


Thanks in advance for your responses.

M.

 

[McMahon]

Hi!

I am a Frenchman too, and my wife is a US citizen. If you are intending to live in the USA after getting married, your fiance could follow the same path I did.

Here is how it worked. I first met my girlfriend in person during a three-week stay in December 1997 (we had been exchanging hundreds/thoussands of emails and letters during the 12 months before we ever met in person) as a tourist on an I-94/Visa Waiver.

When I left, I told her we would stay in contact. I was blessed to have 12-13 weeks of vacation because of the overtime compensation. So I was able every month to come for either a weekend of a week or so as a tourist to visit her from January to April 1998. We got engaged in February 1998 and started the paperwork (I-130 / K-1 fiance fisa application).

She came once (as a US citizen) to visit me in Europe and stayed for 90 days (May to August 1998). She then returned to the USA.

In September I got a K-1 fiance visa. My fiancee flew from the USA to help me pack and we flew together to the USA. It was September 28, 1998.

We got married on December 19, 1998 and I applied for Adjustment of Status on December 24, 1998.

My Green Card was approved on March 19, 2001 and I received the physical card in March 2003.

I have applied for citizenship in March 2007.
----------------------
Detroit DO - NSC
03/16/07 N-400 sent to NSC
03/20/07 Priority Date
03/23/07 Notice of Action letter received
03/23/07 FP letter received
04/12/07 FP done
09/19/07 Interview Appointment (Notice date July 13)

After that,

 

[Jackolantern]

You don't have to be separated for another whole year. Just don't spend more time outside the US than inside.

Does the IO take into consideration spouses situations i.e one national living in the US and the other in France hence trips are required.

Yes they consider that, but not to your benefit. Having a noncitizen spouse or fiance(e) in a foreign country is an indicator that you are residing or intend to reside in that foreign country.

We are planning to get married in April 2008.

You might want to consider delaying the wedding until after you obtain citizenship. Once you get married, your spouse can no longer claim nonimmigrant intent, and nonimmigrant intent is required for entering the US with the visa waiver or tourist visa. But if you get citizenship first, he can enter the US with a fiance visa, then get married and wait inside the US while the green card is being processed.

 

[Marjolaine]

Thanks for all the input. My fiance does not intend to live in the US or work in the US. We are actually planning to settle in France.

Thanks again for the feedback it has provided more food for thought.

M.

 

[Jackolantern]

Thanks for all the input. My fiance does not intend to live in the US or work in the US. We are actually planning to settle in France.

That makes your situation even worse. When applying for US citizenship, you are not supposed to have the intention to settle outside the US. If you are marrying a noncitizen who lives outside the US, and not planning to bring that person to the US, it will be an uphill battle for you to convince USCIS that you don't plan to leave the US.

Citizenship can take 6 months, or it can take more than 3 years if you are stuck in "name check". At some point you have to decide what is more important, US citizenship or living in France with your future spouse?

 

[Marjolaine]

So the best solution would be for both of us to settle in the US.I hold a green card. If we get married in 2007, can my fiance work in the US?

M.

 

[Jackolantern]

So the best solution would be for both of us to settle in the US.I hold a green card.

It's only the best solution if you want to get US citizenship.

If we get married in 2007, can my fiance work in the US?

Not unless he can qualify for a work visa (like H1/L1) independently of you. Otherwise, if you only have a green card, it takes about 5 years to get a green card for your spouse, and your spouse cannot wait inside the US while the green card is in process. The spouse may even have trouble visiting the US, because being married to a US citizen or green card holder is evidence of immigrant intent, and visitors must have nonimmigrant intent.

However, once you get citizenship, you can apply for a fiance visa which comes in a few months, then the fiance can enter the US, get married, get work authorization, and wait for the green card while inside the US.

Another solution might be for your fiance to get a job in Canada and work there while you wait for citizenship. They are not as tight as the US when it comes to immigration restrictions for skilled workers, and being French he would fit in well with the French parts of Canada. That makes it easy for both of you to see each other frequently without you having to take many long trips outside the US; even weekend visits would become feasible.

 

[McMahon]

21.3 Petition for a Spouse.
(a) Petition By Citizen or LPR for a Spouse
(1) Procedural Concerns Particular to Spousal Petitions .
(A) Concurrent Filing of I-130 and I-485 . A petitioner may file an I-130 immigrant visa petition and the beneficiary may file an I-485 adjustment application concurrently. The petition and application are filed at the local office which has jurisdiction over the beneficiary’s place of residence in the United States. (The exception to this is that persons residing in Maryland file the concurrent petition and application through the Vermont Service Center, which forwards them to the Baltimore office after initial processing.) In order to file concu rrently, the I-130 petitioner and the I-485 applicant (who is also the I-130 beneficiary) must be able to meet all the requirements of both forms. For example:[...]
• If the petitioner is an LPR and second preference visa numbers are not “current,” the beneficiary cannot apply for adjustment of status. Again, the I-130 would have to be filed separately at the appropriate service center.

The 5 year waiting time would be because since you are a LPR your spouse does not automatically get an immigrant visa.

While your Naturalization is in process your and your fiance can get things done. You can get married either in France and in the United States (and no matter in which country the marriage takes place) you can (and probably should) have the marriage get onto record by the other country. For example if the marriage takes place in the USA while your fiance/spouse is on a Visa Waiver visa, you can file at a French consulate or at the city hall of your spouse for a marriage certificate transcript). This will facilitate the course of action no matter in which country you decide to live.

You can also start putting together some paperwork to allow eventually your spouse to move to the USA. I do not know whether you as a LPR can file for your spouse and then upgrade the petition when you become a US citizen. The USCIS can provide you with more specific information.

In the meantime, you and your fiance/spouse can regularly fly over to visit each other as my wife and I did. Just my 2 cents.

 

[Jackolantern]

In the meantime, you and your fiance/spouse can regularly fly over to visit each other as my wife and I did. Just my 2 cents.

Your wife was already a US citizen before you got engaged. That makes things very different from the OP's position. In the OP's case, I would suggest not getting married until US citizenship is obtained. Travel for both of them would get risky if they are married first -- the OP's future citizenship is put in jeopardy because of the combination of many overseas trips and being married to a noncitizen who resides outside the US, and her future spouse faces potential problems at the US port of entry for having immigrant intent due to being married to a US green card holder.

 

[McMahon]

Right - I see your point