OK to file N-400 from abroad

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rumnyc

New Member
This is for my wife.

She got her greencard on nov 15 2002, so technically she can apply as it is less than 3 months from that date for her 5 years to complete. However, for the last 3 months we have moved to Japan. She will be going there once every 5 months atleast for her masters, and I have a permanent address in New York (where we lived the last 7 years) so I will get all my mail. If they send any interview/fp requests, she can go to NY in 1 week notice. All the residiency requirements are fullfilled (she was never outside the US for more than 4 months) and total time spent abroad in the last 5 years is about 400 days.

At the moment she is in Japan because I moved there for my job (i don't have US greencard or citizenship) and she is getting her Masters from a college in Vermont, US, but it is a low residency program and she only has to be on-campus a few weeks a semester.

Is it OK to apply now? She will be back in New York In Jan again (for two weeks), so is it better for her to mail her application when she is back in New York? Our plan is to be in Japan for another 2 years before returning to the US.

Any advise will be appreciated.
 
I would advise you to mail the application from NYC itself. Also your wife needs to ensure that she continues to meet all residency requirements until she takes her oath.
 
If USCIS figures out that your wife is current residing in Japan, and intends to stay there long term, she will almost certainly be denied. Tread carefully, and consult a professional.
 
It is understandable that as husband and wife you like to be living in the same country. Your words "the last 3 months we have moved to Japan" pretty much show that you have established residence outside the United States.

It all comes down to your goals in life, where you want as a couple to live - your actions today have repercussions in to the future. One thing is certain: one should carefully consider the fact that establishing residence outside the United States breaks continuous residence in the United States (with a few exceptions to the rule for example for military personnel serving on a vessel).

A move to an residence abroad is not by itself a bar to Naturalization (in particular when the applicant is in possession of a regular/N-470 reentry permit), see for example on page 23 of the M-476 brochure where the USCIS gives the example of an applicant who stayed abroad for 1 year 3 months.
Still, breaking the continuous residence resets the clock to for Naturalization purpose (4 year + 1 day rule).
 
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I think it is important to remember that USCIS views the establishment of a residence abroad as causing a break in continuous residence unless the applicant can rebut the presumption by showing a valid N-470 or sufficient evidence to the contrary (such as immediate family members or other close ties to the US).

Note however, that there is a big difference between a temporary visit abroad, and actually establishing a residence. Renting/buying accommodation would probably fall in the latter category, while staying in a hotel obviously paints a different picture.
 
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I have edited my post for clarification.

My point is that the USCIS gives in a brochure the example of someone who resides outside the United States for 15 months and indicates that this person can at a later time apply for Naturalization, so this is certainly no permanent bar.

Sorry for any confusion, :(
 
Agree, its not a permanent bar, so long as the appropriate steps are taken to (a) preserve the validity of the GC (e.g. through an I-131 reentry permit) and (b) reestablish natz eligibility criteria such as continuous residence and physical presence upon return to the US.
 
Well techincally I moved to Japan, and my wife is still a US resident and she is studying there. She just visits me for months at a time. We didn't marry in the US, and I am not US resident or greencard holder, so she has no legal connection to me in the US except that she visits me.

I guess I will ask her to retain an immigration lawyer when she returns to NY again in a month or so.
 
So how does she plan on answering the IO when she's asked "Why do you keep going to Japan"? She needs to be careful - lying to USCIS is instant trouble if caught.
 
Boatbod - I think that buying a property outside the US by itself might not be an indication of breaking continuous residence. For example you might want to buy property for financial gain or you can get a second house in your home country or you might treat it as a house where you will come and stay for 2-3 months per year. I think the overall behavior is important.

But in this particular case - you are right on track. Just making a general comment.

All the best!
Disclaimer:
I am not a lawyer and don't take my advice seriously.
 
boatbod said:
So how does she plan on answering the IO when she's asked "Why do you keep going to Japan"? She needs to be careful - lying to USCIS is instant trouble if caught.
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I was told by a lawyer a while back (before I moved to Japan) that the only travel that matter is up the time the application is filed. If she keeps travelling afterwards (not more than six months at a time), and she is in the US when she applies and meets all residency requirements then USCIS cannot deny her based on travels done after the application. She is still persuing her masters in writing and can say she is writing about Japan (which is true).

We will also be filing resident taxes (jointly) for 2007 next year and 2008 the year after, and will have a high income both years as I still have and will continue to have income in the US.
 
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rumnyc said:
I was told by a lawyer a while back (before I moved to Japan) that the only travel that matter is up the time the application is filed. If she keeps travelling afterwards (not more than six months at a time), and she is in the US when she applies and meets all residency requirements then USCIS cannot deny her based on travels done after the application.
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Get a better lawyer.

USCIS can and will deny someone who they think has moved abroad, irrespective of whether they moved before or after submitting the N-400 application. If you search around in the old posts (within the last year or so), you will find at least a couple of cases of this happening.

Fundamentally, an N-400 applicant must maintain all eligibility criteria right up until they day they take the oath. In reality, less detailed questions are asked once you successfully pass the interview, but the officers presiding over the oath ceremony do still ask you for all your travel taken between interview and oath.
 
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