Continuous Residence Requirement - Leaving to Study out of Country

[dude23]

Hello everyone,

I realize my situation is quite complicated, so in advance, I thank you for your time. I will seek the advice of an immigration attorney as well, but I thought I'd try my luck here first, as there seems to be a lot of people who are familiar with the immigration process.

Here is my situation in bullet points. For the record, I am a Canadian Citizen.

- July 2008 (age 16), moved from Canada to United States with family
- December 2010 (age 18), received Green Card
- As of now, I am 20, and have had my Green Card for roughly 16 months

Now, my plan is to return to Canada within the next month or so, where I will be continuing the remainder of my studies there (mainly financial reasons). My studies will take roughly 2-3 years. My family will be remaining here in the United States. I am financially dependent on my parents, if that matters. My intention is to return to the United States after my studies. While in Canada, I will be financially dependent on my parents, I will file taxes in the US, maintain my US bank account, and keep my valid drivers license.

I've read the naturalization requirements, and the two problems I may run into are the continuous residence requirement, and the 30 months living in the USA (in the 5 years prior to applying for naturalization).

What do I need to do in order to:

1) Keep my Green Card
2) Be able to apply for Citizenship come December 2015 ish (5 years from when I received my Green Card). Obviously, it is not absolutely necessary for me to apply for naturalization then, but hey, the sooner, the better

Also, should I apply for a reentry permit before I leave?

Again, thank you in advance for everyone who responds

 

[Jackolantern]

Apply for a reentry permit to preserve your green card.

Satisfying continuous residence for naturalization in your circumstances is a bit more difficult though. Continuous residence is often very subjective, so all you can do is take certain actions to improve your chances and hope the interviewer will interpret your situation favorably; there is no exact formula for success when you travel extensively outside the US.

Actions to improve your chances include:
1. Spend most or all of the breaks between semesters inside the US.

2. Make sure you never spend 6 consecutive months outside the US.

3. Don't take any full-time job in Canada. If you work at all in Canada you should file US tax returns to report your income (even though your US tax liability may be zero due to a tax treaty or low income).

4. Have your parents claim you as a dependent on their tax returns (which they're probably doing anyway).

5. Maintain a journal, spreadsheet or some other record of every single trip in and out of the US since getting your green card. Every trip has to be listed on the citizenship application, and you will be pushing the limits of continuous residence and physical presence, so it is important in your case to have exact dates. Do not rely on passport stamps, as they often don't stamp your passport when you cross by land.

6. Stay in the US at least 4 - 6 months in the US (short trips abroad are OK) after your long stays in Canada have ended, in order to dispel the impression that you've permanently relocated to Canada.

7. Do the math and plan your trips so you spend less than a total of 913 days outside the US in the last 5 years before your application submission date. This may include taking a heavier course load some semesters so you can spend less total time in Canada.

 

[dude23]

Wonderful answer. Thank you for taking the time to lay everything out neatly for me. Most parts were crystal clear, but just a few questions for you. I'll quote the part in question, and then ask my question below it.

Apply for a reentry permit to preserve your green card.

Based on what I read, it sometimes takes up to year for that permit to be approved. Since I am leaving to Canada in a month or so, is it okay if I simply apply for it before I leave? I mean, do I physically have to be in the United States when they approve it?

1. Spend most or all of the breaks between semesters inside the US.

Will certainly do that. Was curious, does it matter if I spend those breaks specifically in the state my FAMILY lives? My family lives in Los Angeles. I have family in New York, which is obviously much closer to Canada. Would it be fine for me to spend my breaks with them?

5. Maintain a journal, spreadsheet or some other record of every single trip in and out of the US since getting your green card. Every trip has to be listed on the citizenship application, and you will be pushing the limits of continuous residence and physical presence, so it is important in your case to have exact dates. Do not rely on passport stamps, as they often don't stamp your passport when you cross by land.

I see. I will record all dates I travel in and out, but if I understood correctly, you're saying this is primarily for times where I physically cross the border (driving or something) as oppose to flying. Because when I fly, they stamp my passport, right? Would it also be a good idea to keep all flight ticket stubs?

6. Stay in the US at least 4 - 6 months in the US (short trips abroad are OK) after your long stays in Canada have ended, in order to dispel the impression that you've permanently relocated to Canada.

Lost me a little bit here Do you mean once I have finished college in Canada in 2-3 years, and returned to the United States, I should try not to travel too often in the beginning of my stay back in the USA? I figure that's what you meant, cause I obviously can't spend 4-6 months in the US per year while I'm attending college, since our school year is roughly 8 months. Just clarifying.


So basically, I should visit the USA as often as I can, and keep ties to the USA (my family living here, bank account, drivers license, tax return, etc). Basically, the only obstacle seems to be that I will have to overcome is the 30 months of physical presence in the 5 years before applying for naturalization, correct?

I found these two links, that discuss studying abroad and naturalization:

leagle dot com/xmlResult.aspx?page=5&xmldoc=2007620490FSupp2d130_1603.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

AND

immigration-visa-attorney-blog dot com/2011/01/continuity-of-residence-requir.html

"The burden of proof rests with the applicant. In cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007). "

 

[Jackolantern]

Based on what I read, it sometimes takes up to year for that permit to be approved. Since I am leaving to Canada in a month or so, is it okay if I simply apply for it before I leave? I mean, do I physically have to be in the United States when they approve it?

You have to be in the US when you file the reentry permit application (including the day USCIS receives it), and also a few weeks after filing the application you have to be in the US to give fingerprints at a USCIS office. You can leave the US between those points in time, and you can leave again after fingerprinting and wait for the permit to be approved when you're abroad. The permit will be delivered to your US address, or outside the US to a consulate of your choosing where you can pick it up.

Will certainly do that. Was curious, does it matter if I spend those breaks specifically in the state my FAMILY lives? My family lives in Los Angeles. I have family in New York, which is obviously much closer to Canada. Would it be fine for me to spend my breaks with them?

Stay anywhere within the US.

I see. I will record all dates I travel in and out, but if I understood correctly, you're saying this is primarily for times where I physically cross the border (driving or something) as oppose to flying. Because when I fly, they stamp my passport, right? Would it also be a good idea to keep all flight ticket stubs?

Ticket stubs are not necessary. The point is to keep an accurate record of every trip. How you do that is up to you -- but I'm just pointing out that passport stamps are unreliable because it's so common for them to not stamp the passports of permanent residents and Canadians, even for air travel.

Lost me a little bit here Do you mean once I have finished college in Canada in 2-3 years, and returned to the United States, I should try not to travel too often in the beginning of my stay back in the USA? I figure that's what you meant, cause I obviously can't spend 4-6 months in the US per year while I'm attending college, since our school year is roughly 8 months. Just clarifying.

The point is that you shouldn't hop off the plane and apply for citizenship the next day or next week. Spend some months in the US after your studies have ended, so it's more clear that your extended time in Canada is over and done, then apply.

So it looks like as long as I visit, they do not consider studying abroad to cause a break in continous residency.

Not quite. But in general they are lenient towards students whose travel pattern and ties to the US indicate the time abroad was just for the temporary purpose of studying. Doing things like staying in the US between semesters, being supported by parents who live in the US, and returning to the US quickly after your studies have ended are factors that combine to improve your chances of approval.

 

[dude23]

You have to be in the US when you file the reentry permit application (including the day USCIS receives it), and also a few weeks after filing the application you have to be in the US to give fingerprints at a USCIS office. You can leave the US between those points in time, and you can leave again after fingerprinting and wait for the permit to be approved when you're abroad. The permit will be delivered to your US address, or outside the US to a consulate of your choosing where you can pick it up.

Thank you. I will be filing it on Monday (March 13th).

Are we able to request to have our biometrics done at a specific UCSIS office? I assume by the time my appointment comes, I will already be in Canada, and it will be easier for me to travel to say, New York, than to come all the way to Los Angeles (where my home is).

Also, based on my calculations..over the next few years (attending college in Canada), I will not at any point be there more than 6 months continuously. What is the exact purpose of filing for a reentry permit then?

 

[Jackolantern]

Thank you. I will be filing it on Monday (March 13th).

Are we able to request to have our biometrics done at a specific UCSIS office? I assume by the time my appointment comes, I will already be in Canada, and it will be easier for me to travel to say, New York, than to come all the way to Los Angeles (where my home is).

The appointment will be somewhere close to your city of residence. However, you can go for a walk-in at a different location in the US, and before the official appointment date. So you might be able to get it done before you leave for Canada.

But note that walk-ins are not guaranteed. When you go for a walk-in, just hand in the fingerprint notice to the officer at the front and act as if nothing is wrong; don't say anything about the different date or location unless they mention it. If you are refused, go back later the same day or the next day, or to a different location. They make the decision whether to accept a walk-in based on how busy they are at the moment; returning at a time when they're empty (by afternoon usually they're empty) will increase your chance of being accepted.

Also, based on my calculations..over the next few years (attending college in Canada), I will not at any point be there more than 6 months continuously. What is the exact purpose of filing for a reentry permit then?

If that is your plan you don't really need it. However, having a history of extended travel outside the US without a reentry permit increases the risk of being hassled at the port of entry, and finding yourself being sent to secondary inspection to explain your travels, possibly even being ordered to defend your green card in front of an immigration judge on a future date (although they'll usually give you a warning and tell you to apply for a permit before they go that far). You'll ultimately win when all the facts and evidence are presented, but do you want to have that fight in the first place? If you have the reentry permit you'll almost always just breeze through easily, given that it's your first reentry permit (but people on their 2nd or 3rd consecutive permit may have some difficulties).

If you don't feel like getting it right now, don't bother -- with or without the permit they're probably not going to give you much trouble during your first 6-12 months of traveling. But try to get it sometime before your second year of extended absences.

 

[cafeconleche]

Jackolantern has given you an amazingly comprehensive checklist to follow. KEEP your boarding pass stubs when you fly. It might help. ANY evidence might help. You never know. Also, try to get proof of how tuition will be paid in case they question how you were able to afford your education without working abroad. They asked me for that.

I spent a tonne of time studying in Europe and I applied for citizenship with about 907 days OUT of the US. I was not approved on the spot. The interviewer wanted proof of me not working abroad, and of my parents income since I said they supported me. This was on top of the documents I provided: all my boarding passes, passport stamps, bank and other financial accounts, tax transcripts, car registration, and a letter from my parents saying I had full access to their home, as it was my home too. For proof of not working abroad, I got transcripts from the tax service where I was studying showing no income for the 5 years before I applied.

I never spent more than 6 months abroad, nor did I work. I don't know if I was approved in the end because I overcame all of CIS's doubts, if they even had any, or because I sued them for taking way too long to make a decision. During my second interview, the interviewer said everything was fine, so I think they were ok with my evidence.

The more time you spend in the us, and the more you return to the country, the better. It also depends on who interviews you. You might get lucky and get a nice and understanding person. My first interviewer was very unpleasant, and not at all understanding. I am relieved it's over, but don't ever drop your guard. Treat this seriously. Get a re-entry permit too since it shows you are not leaving anything to chance.

Good luck, and of course, I'm here to help.

 

[dude23]

If that is your plan you don't really need it. However, having a history of extended travel outside the US without a reentry permit increases the risk of being hassled at the port of entry, and finding yourself being sent to secondary inspection to explain your travels, possibly even being ordered to defend your green card in front of an immigration judge on a future date (although they'll usually give you a warning and tell you to apply for a permit before they go that far). You'll ultimately win when all the facts and evidence are presented, but do you want to have that fight in the first place? If you have the reentry permit you'll almost always just breeze through easily, given that it's your first reentry permit (but people on their 2nd or 3rd consecutive permit may have some difficulties).

If you don't feel like getting it right now, don't bother -- with or without the permit they're probably not going to give you much trouble during your first 6-12 months of traveling. But try to get it sometime before your second year of extended absences.

I see. Well, my visit to Canada in a month is not me moving there yet. This is just a summer visit. I've applied to two colleges; one in Canada, one in the USA. It's still 50/50, so it seems like at this point, it would be a better idea to wait on the reentry permit. Given I do ultimately move to Canada in August/September 2012, I will make sure to visit every 5 months or so, and then that summer (Summer of 2013), while I'm back in the USA, I'll take care of getting a reentry permit. Thanks for all your help. Really appreciate it

Jackolantern has given you an amazingly comprehensive checklist to follow. KEEP your boarding pass stubs when you fly. It might help. ANY evidence might help. You never know. Also, try to get proof of how tuition will be paid in case they question how you were able to afford your education without working abroad. They asked me for that.

I spent a tonne of time studying in Europe and I applied for citizenship with about 907 days OUT of the US. I was not approved on the spot. The interviewer wanted proof of me not working abroad, and of my parents income since I said they supported me. This was on top of the documents I provided: all my boarding passes, passport stamps, bank and other financial accounts, tax transcripts, car registration, and a letter from my parents saying I had full access to their home, as it was my home too. For proof of not working abroad, I got transcripts from the tax service where I was studying showing no income for the 5 years before I applied.

I never spent more than 6 months abroad, nor did I work. I don't know if I was approved in the end because I overcame all of CIS's doubts, if they even had any, or because I sued them for taking way too long to make a decision. During my second interview, the interviewer said everything was fine, so I think they were ok with my evidence.

The more time you spend in the us, and the more you return to the country, the better. It also depends on who interviews you. You might get lucky and get a nice and understanding person. My first interviewer was very unpleasant, and not at all understanding. I am relieved it's over, but don't ever drop your guard. Treat this seriously. Get a re-entry permit too since it shows you are not leaving anything to chance.

Good luck, and of course, I'm here to help.

Great advice, thank you. I'll be sure to get as much proof together as I can. My parents will be paying my tuition, so I think their taxes will demonstrate that.

Btw, I may have missed it, but did you personally get a reentry permit while you were studying abroad? Or did you just make sure to visit once every 6 months?

 

[cafeconleche]

I traveled on Refugee Travel Documents and finally a Re-Entry Permit. Either way, I think those showed that I had ties to the US.

 

[Jackolantern]

This is just a summer visit. I've applied to two colleges; one in Canada, one in the USA.

Only 2? Most people apply to somewhere between 5 and 10. Apply to several more, and one might give you enough of a scholarship or aid package to make it cheaper than studying in Canada (especially after considering the costs of traveling back and forth). Attending a US college would solve your continuous residence problem, and it would be easier to get a US job immediately after graduation because there are various employers that do on-campus recruiting.

 

[Jackolantern]

I traveled on Refugee Travel Documents and finally a Re-Entry Permit. Either way, I think those showed that I had ties to the US.

For naturalization purposes, those aren't considered when evaluating your ties to the US.

 

[cafeconleche]

No, I know they don't preserve residence for naturalisation purposes, but I think the fact that one is an asylee or refugee in the US and travels on an RTD shows a sort of allegiance and attachment to the country, don't you? Same goes for traveling on an RP (with no national travel document on the side). That's what I meant. I explained this too to the interviewers, and I know it's a subjective interpretation, but that's what I felt it showed. So, in spite of my lengthy trips abroad, I was tied to the US in the sense that I had no claims to residency anywhere else, and I chose to travel on RTDs and RPs even after my adjustment of status.

 

[dude23]

Only 2? Most people apply to somewhere between 5 and 10. Apply to several more, and one might give you enough of a scholarship or aid package to make it cheaper than studying in Canada (especially after considering the costs of traveling back and forth). Attending a US college would solve your continuous residence problem, and it would be easier to get a US job immediately after graduation because there are various employers that do on-campus recruiting.

Yeah, that was my original plan. I had my applications ready to go for about 5-7 schools. Thing is, I am a transfer student. I've spent two years in a community college. Financial aid for transfer students is very rare, especially in my state. There were a few out of state schools that offered good financial aid for transfer students, but even with that, I would pay $20,000 ish per year out of pocket, and would have to take $5,000 ish in loans per year.

The school I am aiming for in Canada is world renowned (you can probably figure out what school it is ) and the cost (since I'm a Canadian Citizen) is roughly $13000 a year, and that includes tuition and housing.

I will do my best as far as the continuous residence. It's not absolutely necessary for me to become a citizen by 2015. It would have been nice, but I do realize going to Canada may make that more difficult.

Thanks all your help

 

[riq2012]

I was not approved on the spot. The interviewer wanted proof of me not working abroad, and of my parents income since I said they supported me.

Cafeconleche, thank you so much for posting this. I will make sure to add this to my evidence and try to avoid any possible problems.

 

[cafeconleche]

Take as much as you can, lest you have a IO interviewer like mine.