Few months short of 5 years. Any hope?

[mrnaj]

Hello all,

I'm sorry if this is the wrong forum to ask my question but I have a question regarding continuous residence, I'm a 26-year old lawful permanent resident residing in NYC. I was given an immigrant visa initially and then I received my green card in the mail. My first entry to the states was on November 10, 2007. I stayed for about a month and then went back to my home country to finish my undergraduate degree and returned to the US on late October, 2008 and have never left since then except for two very short vacations (less than a month). So it's been 5 years since my first entry but only four years of continuous residence.

My problem is that I'm planning to marry my fiancee next year (probably around June or July 2013), and I would like to bring her to the United States, but she has to be here by September 2013 because she would like to enroll in a graduate school and the term starts on September.

My plan was to become a US citizen and then marry her so she can become a green card holder. But after reading about the continuous residence requirement, it seems like this is not possible until a year from now and I don't know what my options are now. Is there any hope that I can get my citizenship by June or July, 2013 (which is only 3 months short of 5 years) ? If not, are there any other options for her to get in the US and be eligible to study for Fall 2013? I was thinking about student visa but I'm not sure if this is easy to obtain or if it's too late to get one by Fall 2013. I would appreciate any help or pointers on what options to consider. I apologize if my question has already been answered previously, I've tried to research as much as possible before asking my question but couldn't find a similar situation.

Thanks in advance!
MrNaj

 

[Jackolantern]

You should be OK based on the 4 year + 1 day rule.

They won't give her a student visa, because she will have an LPR or USC spouse or fiance living in the US, and the visa application asks about both.

When you become a US citizen, bring your fiancee using the fiancee visa (2-6 months), which is much faster for bringing her to the US than an immigrant visa (6-12 months). But even that might not be fast enough for her to start in September 2013 -- your citizenship process can be expected to take 3-6 months, and another few months on top of that could be into next September or later.

Many (perhaps most) US universities allow for deferred admissions, where a student can request a start date of one or more semesters later than the originally planned date without having to go through the admissions process again. She should see if that option is available for her to start in early 2014 instead. Or if she hasn't applied yet, she can apply with the intention of starting in 2014.

 

[mrnaj]

wow this is really great news for me!! thank you Jackolantern very much for the info!

I have a question about that rule, I tried to look up more information about it but I can't find in the instructions form. Under that rule, it means I'm eligible to submit my N400 as of today, is that correct? Also, how do I request to be considered under that rule? In N-400 form there is no checkbox for that rule, there is a checkbox that says "Other (Explain)" but I'm not sure what exactly to type.

One more very minor question : I see that there is an option to change my name, I've always wanted to change the official spelling of my name, it was spelled with and "i" instead of "y" and this seems like a really great chance for me to fix the spelling, my question is, will changing my name cause additional delay in the naturalization process ? Also, is it really worth it (i.e. will there be any risky implications that I have to consider) ?

Thanks again!
MrNaj

 

[mrnaj]

I just found out that I actually returned on Oct 10, 2008. So I was actually outside the states for about 11 months. Am I still eligible for the 4 year + 1 day rule?

Thanks!

 

[nwctzn]

Since your absence was less than a year I think the 4 year + 1 day rule does not apply. When I googled "four year and one day uscis" I found some threads discussing this.

 

[Jackolantern]

I just found out that I actually returned on Oct 10, 2008. So I was actually outside the states for about 11 months. Am I still eligible for the 4 year + 1 day rule?

USCIS issued an interpretation saying that the rule also applies for trips of between 6 months to a year.

As far as your name change is concerned -- that name change will require a judicial oath if done through the naturalization process, and that may delay your oath by about 1 to 3 months, unless you live in a district where all naturalization oaths are judicial oaths (but most districts are not like that).

So if you don't live in area where all oaths are judicial oaths, and you want to avoid that delay, you should postpone your name change until after your oath date, and handle it through a separate court process instead. However, that court process may take 1 or 2 months.

Probably the best time for your name change would be after your fiancee's visa is approved, but before you get married. That way you can immediately file for her visa after your naturalization oath, you would avoid the risk of disturbing her fiancee visa process with your name change, and your new name would be on the marriage certificate.

Note that if your birth certificate already has your name as you want it (with the "y"), but your green card does not, you don't need a name change. They consider your birth certificate name to be your official name unless you have done a legal process to change it. So all you would need to do is write the birth certificate name for the question on the N-400 where it asks for your current legal name, and bring the birth certificate to the interview (including a certified English translation if the certificate itself is not in English).

 

[nwctzn]

USCIS issued an interpretation saying that the rule also applies for trips of between 6 months to a year.

I would still use caution regarding the 4 years and 1 day rule. The OP left the US just one month after being a resident; i.e., he did not have well established ties to the US and not much time spent in the US before he left for his long absence. I think those are requirements for the 4 years and 1 day rule to apply. The only positive I see is that he left for studies which shows the temporary nature of the absence; however, before applying, I would double-check if this rule really applies or not.

 

[Jackolantern]

I would still use caution regarding the 4 years and 1 day rule. The OP left the US just one month after being a resident; i.e., he did not have well established ties to the US and not much time spent in the US before he left for his long absence. I think those are requirements for the 4 years and 1 day rule to apply. The only positive I see is that he left for studies which shows the temporary nature of the absence; however, before applying, I would double-check if this rule really applies or not.

Double check and then what? Wait another year while his fiancee sits abroad? At this point, it makes sense to go ahead and apply now and hope for a favorable interpretation. In this situation with the urgency of the fiancee abroad and wedding plans and her upcoming university studies on the line, the only reason to wait is if denial is guaranteed ... but denial is not guaranteed, and approval is very possible.

 

[nwctzn]

Double check and then what? Wait another year while his fiancee sits abroad? At this point, it makes sense to go ahead and apply now and hope for a favorable interpretation. In this situation with the urgency of the fiancee abroad and wedding plans and her upcoming university studies on the line, the only reason to wait is if denial is guaranteed ... but denial is not guaranteed, and approval is very possible.

Yes, he can take a shot but he must keep in mind that he may lose $680 and about 5 months in the process if he gets denied.

 

[Jackolantern]

Yes, he can take a shot but he must keep in mind that he may lose $680 and about 5 months in the process if he gets denied.

If it's denied he wouldn't lose any time compared to the safe alternative of applying in October next year. After the denial, he would simply wait until October next year anyway and reapply (or July if using 5 years minus 90 days) ... no time lost other than the time filling out the form and attending FP and interview.