Re-Entry permit question

U

UncleB

Registered Users (C)
Hi guys!

It's been a while since I posted here. Last time I had questions, everyone on here was very helpful so I figured I'd give it another try.

I am a US citizen and my wife has a green card (permanent green card, she got it 1 year ago).

I got a job offer in Europe and we will most probably give it a shot. This would mean that we would be moving to Europe. For how long? I don't know. We want to do the right thing to leave as many options open as possible. For example, if the job in Europe doesn't work out, we want to be able to move back to the US without any immigration issues.

To be on the safe side, should my wife apply for a re-entry permit?

If I understand correctly, this will mean that she can live in Europe for 2 years without having to worry about her permanent resident status. Is that correct?

Also, does the re-entry permit allow multiple entries into the US? For example, if we were away for 2 years and she wanted to come to the us every couple of months to visit her friends. Could she do that?
 
If she got the Permanent GC a year ago, she can apply to get her US Citizenship in just about the same time as it will take for REP on the basis of 3 Years of Marriage to a USC.
 
namecheckvictim said:
If she got the Permanent GC a year ago, she can apply to get her US Citizenship in just about the same time as it will take for REP on the basis of 3 Years of Marriage to a USC.
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Sorry, but I don't understand what you mean.

If we move to Europe with her green card and no re-entry permit, she won't be able to come back to the US after a year or two becuase she would have lost her permanent resident status in the meantime.

Or am I missing something?
 
There are two separate issues that you have to think about:

1) Maintaing your wife's LPR status
2) The effect of moving to Europe on your wife's naturalization eligibility.

For 2), moving abroad to take up a job there, or to accompany the spouse who takes up a job abroad, is something that almost surely be viewed as having disrupted continuous residency and it will, in effect, re-set your wife's naturalization eligibility clock. A reentry permit does not help with this problem. The only exception is to have an N-470 application approved, although from your post it does not sound like your wife would qualify for N-470 (still, you should check, see http://www.uscis.gov/portal/site/us...toid=1e6678264614d010VgnVCM10000048f3d6a1RCRD )

The second issue, maintaing LPR status, is more complicated.

UncleB said:
Hi guys!

It's been a while since I posted here. Last time I had questions, everyone on here was very helpful so I figured I'd give it another try.

I am a US citizen and my wife has a green card (permanent green card, she got it 1 year ago).

I got a job offer in Europe and we will most probably give it a shot. This would mean that we would be moving to Europe. For how long? I don't know. We want to do the right thing to leave as many options open as possible. For example, if the job in Europe doesn't work out, we want to be able to move back to the US without any immigration issues.

To be on the safe side, should my wife apply for a re-entry permit?
Click to expand...
Although this would not necessarily make it "safe" in terms of your wife's LPR status, yes, she should definitely apply for a reentry permit before you go to Europe.

If I understand correctly, this will mean that she can live in Europe for 2 years without having to worry about her permanent resident status. Is that correct?
Click to expand...

Not exactly. The technical meaning of a reentry permit is different. After an absence of more than a year but less than 2 years, the green card itself is insufficient for being allowed back into the U.S.
Someone who has a reentry permit, may be allowed back into the U.S. after such an absence, but that person still has to demonstrate to the CBP officer at the port of entry that he/she has maintained valid LPR status. Having a reentry permit does not relieve one from this latter requirement.

In practice, most CBP officers do seem to treat having a reentry permit as close to sufficient proof of having maintained LPR status and are not likely to give a reentry permit too much trouble, at least for a while.
On the other hand, technically, an LPR is required to maintain his/her primary home in the U.S. Going abroad to accompany a spouse taking up a job there is incompatible with this requirement. So a hard-nosed CBP agent, after questioning your wife's about the circumstances of her trip, may give her some trouble, even with a reentry permit. Eventually (but probably after more than 2 years), this problem will catch up with your wife and she will lose her LPR status, reentry permits or not. Of course, you would still be able to file a new I-130 for her and apply for a new GC for her then if you decide to move back to the U.S.

Also, does the re-entry permit allow multiple entries into the US? For example, if we were away for 2 years and she wanted to come to the us every couple of months to visit her friends. Could she do that?
Click to expand...
Yes, a reentry permit is a multiple entry document. However, you are not required to show it after an absence that was less than a year.
 
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UncleB said:
Sorry, but I don't understand what you mean.

If we move to Europe with her green card and no re-entry permit, she won't be able to come back to the US after a year or two becuase she would have lost her permanent resident status in the meantime.

Or am I missing something?
Click to expand...

She can apply for US Citizenship if her Permanent GC a year ago, as a spouse of a USC she is eligible to file for Citizenship after 3 years of her initial GC approval, instead of getting a Reentry permit which is good only for 2 years she can become a Citizen and then she can live outside US for however long you guys want to.
 
UncleB said:
I am a US citizen and my wife has a green card (permanent green card, she got it 1 year ago).
Click to expand...
Did she have a conditional green card before that? Or did she get a 10 year green card right away?

The naturalization eligibility clock starts at the time the initial green card is approved, even if it is a conditional green card at first. So if your wife did have a conditional green card for 2 years before getting a regular 10 year green card, she could be eligible to file N-400 already.
 
baikal3 said:
The only exception is to have an N-470 application approved, although from your post it does not sound like your wife would qualify for N-470
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His wife would not qualify for an N-470, because it's not she who will be working abroad for a US employer, and she also isn't the spouse of a permanent resident who qualifies for an N-470.

But 319(b) may be available, as I mentioned above.
 
Thanks a lot for the responses!

I wasn't clear in my first post and that caused some confusion.

My wife got her green card for the first time 1 year ago and she got the 10 year card. She will be eligible for citizenship in 2 years.

I certainly need to look into this 319b. Yes, my current employer (US company) has offered me a position abroad.
 
You guys are awesome! I looked into 319(b) and it looks like this is perfect. Almost seems too good to be true.
 
Looks like I jumped the gun on this one :-(

319(b) waives my wife's requirement to be a green card holder for 3 years before applying for naturalization.

I didn't realize, that I have to be a US citizen for 3 years, before she can apply for citizenship on the base of marriage.

This requirement is not waived by 319(b) :-(

I have been a citizen for 2 years.




So if a year from now, I am still employed by the same company and still living abroad, she will be able to take advantage of 319(b) at that point. We will be keeping our house in the US, and she will be back here in the meantime, in order to keep her green card valid.

Is my thinking correct?
 
She can spend some time here and some time there. The more time spent in the US, the better for her continuous residence (and of course physical presence) requirement for naturalization. Does she work?
 
UncleB said:
Looks like I jumped the gun on this one :-(

319(b) waives my wife's requirement to be a green card holder for 3 years before applying for naturalization.

I didn't realize, that I have to be a US citizen for 3 years, before she can apply for citizenship on the base of marriage.

This requirement is not waived by 319(b) :-(

I have been a citizen for 2 years.




So if a year from now, I am still employed by the same company and still living abroad, she will be able to take advantage of 319(b) at that point. We will be keeping our house in the US, and she will be back here in the meantime, in order to keep her green card valid.

Is my thinking correct?
Click to expand...

I am not completely sure, but yes, it appears to me that your understanding is correct.
The relevant language of INA 319(b) is somewhat cryptic, but the relevant portion reads:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9934.html#0-0-0-7719

"... may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required."

To me the phrase "upon compliance with all the requirements of the naturalization laws" means that all the other naturalization requirements, apart from continuous and physical presence, must be satisfied by the applicant. For marriage-based cases one such requirement is having been married to a U.S. citizen spouse for at least three years at the time of application (meaning the marriage is more than 3 years old and the spouse had been a U.S. citizen for at least 3 years). This requirement does not appear to be waived by INA 319(b).
 
baikal3 said:
I am not completely sure, but yes, it appears to me that your understanding is correct.
The relevant language of INA 319(b) is somewhat cryptic, but the relevant portion reads:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9934.html#0-0-0-7719

"... may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required."

To me the phrase "upon compliance with all the requirements of the naturalization laws" means that all the other naturalization requirements, apart from continuous and physical presence, must be satisfied by the applicant. For marriage-based cases one such requirement is having been married to a U.S. citizen spouse for at least three years at the time of application (meaning the marriage is more than 3 years old and the spouse had been a U.S. citizen for at least 3 years). This requirement does not appear to be waived by INA 319(b).
Click to expand...

Here's another thing I missed.....

"...except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required."

Does that she would still be able to apply in 1 year even if we were living abroad and sold our house in the US?
 
UncleB said:
Here's another thing I missed.....

"...except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required."

Does that she would still be able to apply in 1 year even if we were living abroad and sold our house in the US?
Click to expand...

My understanding is that yes, she would be able to apply for N-400 under INA 319(b) in a year, even if she moves abroad to live with you.
However, I suggest that you double-check with an immigration lawyer before you go that route. In particular, you have to make very sure that all the other requirements of 319(b) are satisfied, especially the one about your employer being a U.S. company.
The USCIS uses its own definition of what qualifies as a "U.S. company". Basically it has to be either
1) A company that is more than 51% owned by U.S. citizen(s)
or
2) A company that is publicly traded, incorporated in the U.S. and is exclusively traded in the U.S. stock exchange(s).

Many big multinationals do not qualify for this definition because their stock is publicly traded both in the U.S. and abroad, and because there are so many (constantly changing) shareholders that it is impossible in practice to verify condition 1).
 
I spoke with 3 highly recommended lawyers today and each one of them knows less about 319b than I do from reading this forum :-(
 
UncleB said:
I spoke with 3 highly recommended lawyers today and each one of them knows less about 319b than I do from reading this forum :-(
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That is a pretty sad commentary on the state of the legal profession...
I guess the trick is to find a lawyer who has some experience in dealing with 319(b) rather than just a random immigration lawyer. Maybe some google searching can help here.

E.g. here is a lawyer who claims to be an expert in 319(b) and to have actually published an article about 319(b) naturalizations:
http://www.webberlaw.com/people/penni-frank
 
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baikal3 said:
I am not completely sure, but yes, it appears to me that your understanding is correct.
The relevant language of INA 319(b) is somewhat cryptic, but the relevant portion reads:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9934.html#0-0-0-7719

"... may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required."

To me the phrase "upon compliance with all the requirements of the naturalization laws" means that all the other naturalization requirements, apart from continuous and physical presence, must be satisfied by the applicant. For marriage-based cases one such requirement is having been married to a U.S. citizen spouse for at least three years at the time of application (meaning the marriage is more than 3 years old and the spouse had been a U.S. citizen for at least 3 years). This requirement does not appear to be waived by INA 319(b).
Click to expand...

Actually, I may have been wrong on this one.

Here is a 2010 post from someone whose wife apparently got naturalized under 319(b) after having been married to a U.S. citizen spouse for only 14 months:
http://www.visajourney.com/forums/topic/261033-319b-naturalization-at-fairfax-va/
 
baikal3 said:
Actually, I may have been wrong on this one.

Here is a 2010 post from someone whose wife apparently got naturalized under 319(b) after having been married to a U.S. citizen spouse for only 14 months:
http://www.visajourney.com/forums/topic/261033-319b-naturalization-at-fairfax-va/
Click to expand...

Thanks for the info. However, that is not our concern. We have been married for 7 years. The problem is that I have only been a US Citizen for less than 2 years.

I was reading through the N-400 the other day and one of the documents that my wife needs to submit is proof that her US Citizen husband has been a citizen for more than 3 years.
 
The application of this section of the INA is mostly concerned with the USC spouse's specific employment and the alien spouse's intent and ability to join the qualified spouse abroad while so employed and the further intent to take up residence in the U.S. when the spouse's foreign assignment ends. Nowhere does thios section of the statute state that the USC spouse has to have been a USC for a certain period of time. Different situations and circumstances relate to the different sections of the INA. There is some cross-referencing in certain sections but they will be specific and more obvious. See also, Interpretations 319.1 and 319.2 on www.uscis.gov on laws tab.

INA 310 is a simple sections saying who in the government is in charge of adminsitering naturalization [the law changed from Attorney General to DHS],
311 is "no sex, race or marital status" discrimination,
312 is English, civics and exceptions,
313 is prohibition on subversives,
314 & 315 is military deserters and quitters based on alienage,
316 is the MAIN Naturalization Requirements sections (it is the one most cross-referenced by the other subsequent special category sections).
etc...

Compare INA 319(a) which specifically refers to 316(a)(1) to...

INA 319

(b) Any person,

(1) whose spouse is

(A) a citizen of the United States,

(B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomin ation having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and

(C) regularly stationed abroad in such employment, and

(2) who is in the United States at the time of naturalization, and

(3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.
 
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