Naturalization based on marriage to a USC (now on DV GC)

[abumiqdad]

Hi all.

I have a question regarding this - if i plan to naturalize using the 3 year rule, what do i need to do? Background info:

1. Wife is a natural born USC - left USA at the age of 2 and never stepped foot on US soil ever since then.

2. I got selected for DV lottery, activated the GC Nov of last year (2016).

3. My eldest child got included in the DV so he has a GC now. (DV3)

4. 2nd child (youngest) was not included and wife is petitioning for him now (I-130)

5. Currently out of the USA and plan to go back to USA this month (just me and my kid - wife still has to work in home country and taking care of the youngest)

6. Planning to get re-entry permit this month too (I-131) and return to my home country after the I-131 biometric.

7. Will make a move to the USA some time middle of next year after the petition is approved and visa in hand for the youngest.



Now my questions:

1. Let's just say i arrive on US soil again maybe July next year (July 2018), how soon can i apply for naturalization?

2. Would having Re-entry permit affects my application?

3. Also once I naturalized using 3 year rule, would my offspring , regardless where he/she is born (obviously out of the USA), be considered as a USC at birth? (i know that the offspring of parents where both parents are USC, will always be a USC IF one of them has been in the USA prior to the birth - but i just want to know that IF, just IF, USCIS considers only my citizenship (via naturalization after being LPR for 3 years), would my child automatically be considered as a USC? Or do i need to spend 5 years as a USC on US soil before that takes place?)

- SIDE INFO, prior to getting a GC, I spent 4 years in the USA on J1 visa years ago, completing my bachelors degree - not sure this period can be counted towards that 5 years being USC rule before my offspring can be considered USC at birth).

4. What do i need to prove/provide as supporting documents if i am applying for naturalization based on my marriage to USC? Proof of bona-fide marriage? Joint accounts? living at the same address?

Thoughts?

 

[newacct]

1. To qualify for naturalization under the 3-year rule, you must have had continuous residence as a permanent resident for the last 3 years, and have been married to a US citizen for the last 3 years (you can apply 90 days before meeting the continuous residence requirement, but must have met all the other requirements at the time you apply). So if you didn't break continuous residence, you would be eligible to apply when you have been a permanent resident for 2 years and 9 months, or have been married for 3 years, whichever is later (i.e. if you married more than 3 months before you became a permanent resident, then you wait until you have been a permanent resident for 2 years and 9 months; otherwise, you wait until you have been married to the US citizen for 3 years).

However, being absent from the US for more than 6 months is presumed to break continuous residence. For an absence of between 6 months and 1 year, it is possible to overcome the presumption you broke continuous residence with strong evidence. For an absence of more than 1 year, you definitely break continuous residence (there is an exception for people working for certain American research firms abroad who file a special form, but that doesn't apply to you). They might also consider multiple absences with short breaks in between to be one long absence.

I will assume you are breaking continuous residence with your absences; the question is how long after you return are you eligible to file. There is the 4 years + 1 day / 2 years + 1 day rule, where, after you return from an absence of more than 1 year, you are considered to meet the continuous residence requirement under the 5-year rule 4 years and 1 day after your return, and you are considered to meet the requirement under the 3-year rule 2 years and 1 day after you return. It is unclear whether you are breaking continuous residence with an absence of more than 1 year or between 6 months and 1 year, and there is dispute about whether the 4 years + 1 day / 2 years + 1 day rule applies when you broke continuous residence with an absence of between 6 months and 1 year. So it's kind of hard to figure out when you will be able to apply.

2. no

3. I am assuming these are your children but not your wife's children (i.e. they are your wife's stepchildren). On the day you become a citizen (the day you take the oath), any of your children who are permanent residents under 18 and living with you in the US at that time automatically and involuntarily become US citizens under INA 320, without needing any application or action, and neither you nor your children have a choice in the matter. They will not become USC "at birth" -- they will become USC as of that day that all the conditions are simultaneously met. If this doesn't happen before they turn 18, then your naturalization has nothing to do with them, and they, like any other permanent residents, can file an application for naturalization by themselves after 18, if they choose, when they meet the requirements for naturalization under the 5-year rule.

4. joint tax returns, joint bank accounts, leases

 

[abumiqdad]

Sharing my response here too:

1. so the counting begins AFTER I RETURN to US soil (meaning I cannot start the period counting to start when i am absent from the USA) ? i will be back on US soil this Saturday and will stay there until - hopefully i receive my re-entry permit. Then will make my migration for the whole family middle of next year. July 2018 is the targeted month.

Based on my understanding of your explanation - i can only start counting from July 2018, so the earliest i can apply for naturalization is 2 years 9 months after that (April 2021)?

4. i guess maybe it is not a custom thing from the country i am from, but my wife and i do not have joint accounts here - but we are being transparent with each other- we both have access to each other's accounts and finance details. Not an issue, i will open a joint account soon when she can come to the USA next year.

Would filing tax "MARRIED BUT FILING SEPARATELY " be a cause of concern? (we filed using that option as it looks easier for the calculation since we are using the overseas income tax exemption for both of us).

 

[newacct]

1. Yes, if you have interrupted "continuous residence". Note also that you might be able to use the 2 year + 1 day rule, where you can apply 2 years + 1 day after you come back.
4. The checklist actually says tax return transcripts "or" the tax returns, accounts, leases, etc. So maybe tax return transcripts are enough. Married filing separately should be fine as long as you explain it.