Need help on Continuos residence for Nat. Eligibility

M

marriednatur

Registered Users (C)
Hi all

I am a LPR for since March 2008 (3 years) and would like to get some help on the interpretation of the "continuous residence" requirement for Naturalization. I believe I will have met all other requirements in 2 years without any problems (i.e. physical presence etc.)

I am asking help because I got married overseas, my wife got denied a nonimiigrant visa (before wedding) and we have to live seperately now. We found ourselves in a very difficult position.

Could anyone help me understand what is acceptable, what is not acceptable for continuos residence?

I have the following ideas in my mind. Which of these do you think would be acceptable for "continuos residence" for the remaining 2 years before the Naturalization application.
1) Can I do 5 months + 1 month intervals 4 times?
(Spend 5 months with my wife outside USA, 1 months in USA working)
2) Can I do 3 months + 3 month intervals 4 times?
(Spend 3 months with my wife outside USA, 3 months in USA working)
3) Can I do 5 months + 7 month intervals 2 times?
(Spend 5 months with my wife outside USA, 7 months in USA working)

Of course 1st option is the one I prefer the most, however reading other discussions, I doubt it. Can I suggest "my wife being denied a nonimmigrant visa" as an excuse to stay abroad for long times ( I am not planning to stay outside longer than 5 months)

In all cases, I am planning to keep CC, bank accounts, my drivers licence, cell phone bills etc. in the US. I will try to work online even if I am out of USA to get W2.

Speaking of W2, my tax advisor told me, because my wife has never been to USA (no SSN or TIN), I cannot show her as a dependent. Therefore, I filed taxes as "single" this year. Would this be an issue during naturaliztion?

I am also planning to rent a room from a friend who owns his house from now on. How can I document a renter's agreement with that friend. (Is there a blank leasing agreement form we can both fill in? Is it that simple? Should I give him actual checks toi document further?)

Thanks a lot in advance for sharing your ideas, past experinces with me..


Out of USA trips since GC approaval:
Mar 2008 : GC approval (EB based)
May 2009 : 1st trip (1 month)
Oct 2009 : 2nd trip (1 week)
Mar 2010 : 3rd trip (2 weeks)
June 2010: 4th trip (1 month)
Oct 2010 : 5th trip (1 week)
Total time spent in USA: 2 years 9 months
Total time spent outside: 3 months
Total time with GC: 3 years
 
marriednatur said:
Hi all

I am a LPR for since March 2008 (3 years) and would like to get some help on the interpretation of the "continuous residence" requirement for Naturalization. I believe I will have met all other requirements in 2 years without any problems (i.e. physical presence etc.)

I am asking help because I got married overseas, my wife got denied a nonimiigrant visa (before wedding) and we have to live seperately now. We found ourselves in a very difficult position.

Could anyone help me understand what is acceptable, what is not acceptable for continuos residence?

I have the following ideas in my mind. Which of these do you think would be acceptable for "continuos residence" for the remaining 2 years before the Naturalization application.
1) Can I do 5 months + 1 month intervals 4 times?
(Spend 5 months with my wife outside USA, 1 months in USA working)
2) Can I do 3 months + 3 month intervals 4 times?
(Spend 3 months with my wife outside USA, 3 months in USA working)
3) Can I do 5 months + 7 month intervals 2 times?
(Spend 5 months with my wife outside USA, 7 months in USA working)

Of course 1st option is the one I prefer the most, however reading other discussions, I doubt it. Can I suggest "my wife being denied a nonimmigrant visa" as an excuse to stay abroad for long times ( I am not planning to stay outside longer than 5 months)

In all cases, I am planning to keep CC, bank accounts, my drivers licence, cell phone bills etc. in the US. I will try to work online even if I am out of USA to get W2.

Speaking of W2, my tax advisor told me, because my wife has never been to USA (no SSN or TIN), I cannot show her as a dependent. Therefore, I filed taxes as "single" this year. Would this be an issue during naturaliztion?

I am also planning to rent a room from a friend who owns his house from now on. How can I document a renter's agreement with that friend. (Is there a blank leasing agreement form we can both fill in? Is it that simple? Should I give him actual checks toi document further?)

Thanks a lot in advance for sharing your ideas, past experinces with me..


Out of USA trips since GC approaval:
Mar 2008 : GC approval (EB based)
May 2009 : 1st trip (1 month)
Oct 2009 : 2nd trip (1 week)
Mar 2010 : 3rd trip (2 weeks)
June 2010: 4th trip (1 month)
Oct 2010 : 5th trip (1 week)
Total time spent in USA: 2 years 9 months
Total time spent outside: 3 months
Total time with GC: 3 years
Click to expand...

The issue of deciding if the continuous residency requirement is satisfied is determined by the IO conducting the naturalization interview, and that IO has rather wide discretion in this regard. Therefore you must not expect any clear cut and definitive answers here.
It is simply not possible to know for sure what the IO will decide and there is no magic formula that is certain to work.
That being said, option 1) is almost certain to cause you significant problems with your N-400, option 3) is likely to be OK and option 2) is a toss-up, depending on your luck with the IO.

I am not sure about the IRS filing status question, but using "my wife being denied a nonimmigrant visa" as an excuse for travel abroad is not going to help you, and in fact it might hurt.
When evaluating continuous residency, the IO will look at things like your primary residence, your primary source of income and your family ties in the U.S.
Maintaining a job in the U.S., owning/renting a house/apartment in the U.S., having immediate family members reside with you in the U.S. are pluses.
Conversely, taking a job or jobs abroad, owning/renting a house/apartment abroad, having immediate family members residing abroad are minuses.
The IO will have to decide where your primary residence is and has been for the relevant period. While I am not a mind-reader, but I would say that renting a room at a friend's house will not convey a particularly convincing impression that that room is your primary place of abode. At the very least, you should sign a formal lease agreement with your friend and keep copies of the rental checks.
Any big stationery store will have legal forms for rental/lease agreements (you can also probably find such forms on the internet). It would also be advisable to maintain the lease even for those periods when you are traveling abroad.

I also think that it would be a good idea for you to file I-130 for your wife now, and not wait until you become a U.S. citizen. At the moment the waiting time for the priority date to become current in the 2A family preference category (which includes spouses of GC holders) is about 4 years. If something goes wrong with your naturalization application, you'd then be able to use an approved I-130 in about 4 years if you file one now. Also, my understanding is that if you file I-130 in the 2A family preference category now, and it gets approved, and then you become a U.S. citizen in 2 years, you'll still be able to use that approved I-130 to get your wife a GC without having to file a new I-130.
 
Last edited by a moderator:
Can I suggest "my wife being denied a nonimmigrant visa" as an excuse to stay abroad for long times
Click to expand...
No. Spending time with close family overseas indicates you have strong ties outside the US and would make your case worse.

1) Can I do 5 months + 1 month intervals 4 times?
(Spend 5 months with my wife outside USA, 1 months in USA working)
2) Can I do 3 months + 3 month intervals 4 times?
(Spend 3 months with my wife outside USA, 3 months in USA working)
3) Can I do 5 months + 7 month intervals 2 times?
(Spend 5 months with my wife outside USA, 7 months in USA working)
Click to expand...
#1 is definitely the worst option. It would jeopardize your green card, not just your naturalization.

#2 and #3 appear to be equally OK, since you would be keeping all trips under 6 months and spending equal or greater time inside the US than outside.

Speaking of W2, my tax advisor told me, because my wife has never been to USA (no SSN or TIN), I cannot show her as a dependent. Therefore, I filed taxes as "single" this year. Would this be an issue during naturaliztion?
Click to expand...
I think you're supposed to file as "married filing separately", since you are not legally separated. Was that "tax advisor" a professional accountant or tax attorney, or just an H&R Blockhead? Check with a real tax professional -- you may need to file an amended return. However, there might be a provision to file as single if one's spouse is a nonresident noncitizen who lives outside the US, even if you're not legally separated; ask about that.
 
Thanks baikal3 and jackolantern for the responses

I understand it is a subjective issue and ultimately all will be based on IO's evaluation in the interview. I hope my wife and I can continue to sacrifice 2 more years. My ultimte goal is increase time I spend with my wife so that our marriage survives.

I did already file for I-130 for my wife with the hopes that the PR dates will continue to progress and she can get GC in within a year. But seems like it'll not happen that quickly unfortunately.

My tax advisor is a professional (not H&R) and he himself is an immigrant. However, he is not an immigration expert afterall. I'll try to check this tax issue with USCIS consultation center (a friend told me there are centers you can go and consult your case).. Would you recommened I also ask USCIS about the options I included here? (Limits of spending time out of the counry)

I actually have a friend who was in the same situation with me 15 years ago. He did the 3rd option and it worked with him. However that was 15 years ago, I was concerned the rules may have changed in the last 15 years.

Thanks again for the help, hope this helps others who are in similar position with me..
 
marriednatur said:
My tax advisor is a professional (not H&R) and he himself is an immigrant. However, he is not an immigration expert afterall. I'll try to check this tax issue with USCIS consultation center (a friend told me there are centers you can go and consult your case).. Would you recommened I also ask USCIS about the options I included here? (Limits of spending time out of the counry)
Click to expand...
The USCIS people are terrible when it comes to giving advice. Asking about something tax-related will be even worse. They can provide information about the status of an existing immigration case, but asking about eligibility for a benefit or what is the best option for a situation will frequently lead to no answer or a wrong answer ... sometimes a disastrous answer that ends in deportation when the person follows the bad advice.

Did your tax pro give you the specific IRS publication or any other specific document indicating your eligibility to file as single? Many tax accountants and tax lawyers aren't very familiar with the laws regarding cross-border tax issues. If they can't point you to a specific document, take their advice with a grain of salt. So far everything I've seen about it, particularly IRS publication 501, requires you to be legally separated or unmarried in order to file as single.

I actually have a friend who was in the same situation with me 15 years ago. He did the 3rd option and it worked with him. However that was 15 years ago, I was concerned the rules may have changed in the last 15 years.
Click to expand...
They probably were more lenient 15 years ago. But as I said before, either #2 or #3 should be OK.
 
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