Naturalization questions

[hoho193]

Hi,

I've tried to search the forum for the similar questions but couldn't find one specific answer to mine. Hope someone can give me some insights.

My wife is going to meet the 5-year requirement for naturalization on Aug 10, 2009 and now she's preparing to apply N-400 according the 90-day rule. Here's her travel pattern for the last 5 years.

1. She received her GC on Aug 10, 2004
2. Travelled to China from December 17, 2005 to Jan 7, 2006 (For getting married with me, I am not a GC holder btw)
3. Travelled to China from July to November in 2008 to China (100 days)
4. Travelled to China again from December to May in 2009 (174 days)

From July 2008 to May 2009, she spent most of her time outside of US for some family reasons, but she has maintained bank accounts/US address while she's away.

Questions.
1. Does anyone see any problem when she sees the IO for the interview?
2. 90-day rule says she needs to reside in a state 3 months before applying the naturalization. Does she need to physically reside in a state? She's had bank statements with the current address for almost a year. would that be suffice?


Thanks in advance for the reply. Please let me know if you need more information, I would like to get this sort out ASAP.

 

[Huracan]

Sec. 316. [8 U.S.C. 1427]


(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months,

My interpretation (personal opinion) of this is the following (with an example):

If I live in San Francisco for a few years, then I go to China for five months and come back to San Francisco I could immediately apply for citizenship because I have lived more than 3 months in San Francisco. My take is that the three months don't have to be immediately before the application.

Now, the original poster has just mentioned bank statements. Bank statements don't have anything to do. She has had to live 3 months in the state where she is applying.

The main problem I see is that although she doesn't have trips of more than six months it seems she has "abandoned" residence in the US since July 2008. That might turn to be the bigger problem.

 

[sh1996]

From July 2008 to May 2009, she spent most of her time outside of US for some family reasons, but she has maintained bank accounts/US address while she's away.

Questions.
1. Does anyone see any problem when she sees the IO for the interview?

Yes. Your wife has two back to back absences that total more than 6 months. While it completely depends on the whim of the interviewing officer, it is well within his right to question whether or not your wife met the continous residency requirement. Absences of between 6 months and 1 year (just coming back to US to keep actual absences just under 6 months is not good enough if the absences are back to back) are deemed a break in continuous residency and the obligation is on your wife to prove otherwise.

You said her absence was due to family reasons...get proof. For example, if she was taking care of a sick parent, get documentation of parent's illness from the doctor. Also, did you stay in the US and maintain your US residence while she was in China? (If you did, good evidence.) Did your wife get a job while in China? (If she did, bad evidence.) Did your wife file US tax returns? (She's required to report all worldwide income to the IRS if she is a GC holder. If she didn't, have it filed asap.) Other proof can consist of owning a home in the US, lease showing your wife paying rent in the US during that period, etc.

At best you'll get an IO who notes that both absences were under 6 months and decides not to combine them. At worst you'll get an IO who determines your wife broke continous residency and rejects the application. She can then re-apply 4 year + 1 day after she actually comes back to the US. If she's going to stay in China for longer, at least get her a re-entry permit so she doesn't have abandonment of GC issues.

2. 90-day rule says she needs to reside in a state 3 months before applying the naturalization. Does she need to physically reside in a state? She's had bank statements with the current address for almost a year. would that be suffice?

This is secondary to the continous residency question above.