Eligibility for Citizenship?

S

sehar

Registered Users (C)
Hello,

I am on H1b and applied for G.C through employment based.

I like to ask a citizenship eligibility question for my spouse.
My spouse is green card holder since Jan,2002.I like to know when my spouse can file for US citizenship?

-My spouse G.C issued Jan,2002
-From 2002 to 2004 she was completing her studies abroad.
-She doesn't file tax return and doesn't have bank account during that period.
-She got green card through her uncle family based.(i.e 5 year to get citizenship)


Here is the detail of Stay in USA

Year 2002 -- Inside USA (Jan,Feb,Mar) / Outside USA (Apr,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2003 -- Inside USA (Feb,Mar,Apr) / Outside USA (Jan,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2004 -- Inside USA (Apr,May,June) / OutSide USA
(Jan,Feb,Mar,July,Aug,Sep,Oct,Nov,Dec)

(In year 2004, she applied for re-entry permit in June,2004 for two years but didn't utilized the re-entry permit i.e returned to US in Jan,2005 ...after completing her studies.And now living continiously with me since Jan,2005.

Year 2005 -- Inside USA (Jan to Dec) /Out side USA (None)
Year 2006 -- Inside USA (Jan to Dec) /Out side USA (None)
Year 2007 -- Inside USA (Jan to Dec) /Out side USA (None)
Yes 2008 --- Inside USA so far.
 
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sehar said:
Hello,

I like to know when my spouse can file for US citizenship?

-From 2002 to 2004 she was completing her studies abroad.
-She doesn't file tax return and doesn't have bank account during that period.
-She got green card through her uncle family based.

Here is the detail of Stay in USA

Year 2002 -- Inside USA (Feb,Mar) / Outside USA (Jan,Apr,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2003 -- Inside USA (Feb,Mar,Apr) / Outside USA (Jan,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2004 -- Inside USA (Apr,May,June) / OutSide USA
(Jan,Feb,Mar,July,Aug,Sep,Oct,Nov,Dec)

(In year 2004, she applied for re-entry permit in June,2004 for two years but didn't utilized the re-entry permit i.e returned to US in Jan,2005 ...after completing her studies.And now living continiously with me since Jan,2005.

Year 2005 -- Inside USA (Jan to Dec) /Out side USA (None)
Year 2006 -- Inside USA (Jan to Dec) /Out side USA (None)
Year 2007 -- Inside USA (Jan to Dec) /Out side USA (None)
Yes 2008 --- Inside USA so far.
Click to expand...

You left out the most important detail needed to answer your question: when was her GC originally issued?
 
You didn't mention when her gc was originally issued. Also, are you US citizen?

If you live with your green card holder-spouse for 3 years, she is elgible to apply unless she meets continuous residence rules.
 
You didn't mention when her gc was originally issued. Also, are you US citizen?

If you live with your green card holder-spouse for 3 years, she is elgible to apply unless she meets continuous residence rules.
_________________________________________________________________


It's issued on jan,2002. No I am on H1b and in process of AOS through my employer.
 
sehar said:
Year 2002 -- Inside USA (Jan,Feb,Mar) / Outside USA (Apr,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2003 -- Inside USA (Feb,Mar,Apr) / Outside USA (Jan,May,June,July,Aug,Sep,Oct,Nov,Dec)

Year 2004 -- Inside USA (Apr,May,June) / OutSide USA
(Jan,Feb,Mar,July,Aug,Sep,Oct,Nov,Dec)

(In year 2004, she applied for re-entry permit in June,2004 for two years but didn't utilized the re-entry permit i.e returned to US in Jan,2005 ...after completing her studies.And now living continiously with me since Jan,2005.
Click to expand...
If you are a US citizen living with her, and have been a US citizen for at least three years, she is already eligible to apply.

If not, the 4 years + 1 day rule would apply, which would put her eligibility date in January 2009.
 
She can apply immediately , but since her trips to study abroad during 2003-2004 assumes her intention was to break the continuous residency requirement, she would need to provide supporting evidence (immediate family stayed in US, US residence(lease or mortgage), US taxes filed if required etc..) the prove otherwise. If she cannot provide this evidence then it would be best for her to wait until October 2009 to apply. (Jan 2005+ 5 years-90 days).

Note:Some on this board (Jackolantern and boatbod) will argue that she can apply earlier (4 years + 1 day from Jan 2005) based on an old (questionable) reference in the adjudicator's field manual (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=298eda5d08f82d564fff8ec3c2b38ae9), but my interpretation of the law AND what is written in the instructions for naturalization manual (M-476) is that this rule can only be used for continuous periods spent outside the country more than 1 year but less than 2 years provided a re-entry permit was obtained)
 
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BobbySmith,

She got re-entry permit in june,2004. But Came back in Jan,2005 and living in USA since then.

Unfortunately, she didn't file tax return and not have any lease/mortgage etc.
from 2002 to 2004
 
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After reviewing your spouse's length of stay in USA, since you are on H1 holder, your wife will have to wait until next year as bobsymth said.
 
sehar said:
BobbySmith,

She got re-entry permit in june,2004. But Came back in Jan,2005 and living in USA since then.

Unfortunately, she didn't file tax return and not have any lease/mortgage etc.
from 2002 to 2004
Click to expand...

In that case I would have her wait until October 2009 to apply since the 4 years + 1 day rule does not apply in your case (according to interpretation of the law 8 CFR 316.5(c) (1) (i) and naturalization manual M-476). I put more weight on the written law and naturalization manual, rather than on a correspondence letter in the field manual that makes reference to the incorrect section of the law.
 
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I guess I should post a link to the aforementioned memo.

http://www.immigrationportal.com/showthread.php?t=254465

The memo is one of many appendices to the Adjudicators Field Manual, which taken as a whole, is the instruction manual for USCIS staff.

While I agree that federal law represents the final word as far as the rules are concerned, this collection of USCIS procedures represent how cases are adjudicated in the real world. If a case comes before an immigration judge, the judge refers to the CFRs, however if it comes before an IO or ADO, they use the field manual.
 
Actually I posted the link as reference in my previous post above. I still think it's a weak argument as the same adjudicators field manual contains the CFR in question.http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=be624204d24312ea822e78ae0015b596
In the end, the law overrides any past correspondence that misinterprets or misreferences the law. I would surely hope that a superior IO would notice this and adjudicate a case accordingly.

Moreover, if you read that correspondence letter it's basically saying that someone who has left the county for 7 months and can't provide evidence as far of intent to preserve continuous residency requirement can apply for naturalization 4 years + 1 day after their return. If you think about it , that means the applicant automatically gains 364 days as credit for being out the country for 7 months. That just doesn't make logical sense. The law is written to provide up to 364 days credit for time spent outside the country more than 1 year and less than 2 years, not to give bonus credit for someone who leaves the country less than 1 year.

Finally, the field manual on the USCIS website is a revised version for the public. What makes you so confident that that IOs are using this version to adjudicate cases? I am sure that their internal adjudication procedures consist more of than an online public field manual.
 
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