Reg. Application for Citizenship.

K

Kumar_a

New Member
Dear Sir,
I and my wife received our green card in the first week of March 2001. Due to family reasons, my wife had to spend eight months in India between Aug 2002 and March 2003 and I had to spend time in India between Nov 2002 and March 2003. We returned back to USA on April first week of 2003. Again, due to some medical emergency, my wife had to return back to India in Feb 2004 and I came to India in May 1st 2004. Now that she has recovered but needs another two or three months of bed rest, If I had to stay back for another two months back in India, will I be losing continuity of stay for 180 days within a year and will I be not eligible for US citizenship? What if my wife is not fit for travel even by next Feb 2005, will she not be able to travel back to USA again?
Also, technically when will I be able to apply for US citizenship. Any help greatly appreciated.

Thanks,
Kumar.
 
Kumar_a said:
Dear Sir,
I and my wife received our green card in the first week of March 2001. Due to family reasons, my wife had to spend eight months in India between Aug 2002 and March 2003 and I had to spend time in India between Nov 2002 and March 2003. We returned back to USA on April first week of 2003. Again, due to some medical emergency, my wife had to return back to India in Feb 2004 and I came to India in May 1st 2004. Now that she has recovered but needs another two or three months of bed rest, If I had to stay back for another two months back in India, will I be losing continuity of stay for 180 days within a year and will I be not eligible for US citizenship? What if my wife is not fit for travel even by next Feb 2005, will she not be able to travel back to USA again?
Also, technically when will I be able to apply for US citizenship. Any help greatly appreciated.

Thanks,
Kumar.
Click to expand...



There is a good PDF on citzenship at the uscis.gov site. to answer briefly, physical presence (PP) and continuous residency (CR) tests must be met during a 5 yr period preceeding the greecard - meaning basically you should spend 30 months residing in the US and not take trips longer then 6 months outside the US. The 6 months (180 days) is not relevant to any year - it does *not* go by year but only by the length of the trip.

Stays outside of the US longer then 180 days can also threaten the greencard as there is rebuttable presumption that you are no longer resident. You should maintain your ties as much as possible and document them. Where possible I would also recommend applying for a I-131 travel document to protect the Green Card if it is likely to be threatened (this will do nothing for naturalization), I beleive they can issued quickly for medical justifed emergencies - although it does have to be severe - and you have to be in the country when applying.

Without the I-131, stays longer then 1 year will generally void the GC and thus naturalization is not possible. There are steps that can be taken to re-enter the US on a stay longer then 1 year though.

I believe you can apply for naturalization via a N400 form, 3 months before the 5 year period , i.e 57 months after the date on your greencard, i think that is the earliest, providing you have met the CR and PP tests during that period of time.

In short, i think the absences longer then 6 months have voided naturalization until you are both back in the country, i think the 5 year clock starts again from the last time you was out of the country for more then 6 months.

Protecting the greencard should be a priority as you lose this, it over and naturalization is not going to happen later.


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Last edited by a moderator:
Dear Sir,
Thanks for your reply. But the circumstances are such that I may not be able to travel back to USA due to wife medical reason for atleast next two months. With that, I would have been out of USA for nearly eight months. When I travel back, will I have problems at port of entry? I remember someone mentioning that at the time of applying for US citizenship, more than 180 days out of the country, if there is any real applicable reason, then 180 days rule may be waived. Is it true? This is a true medical emergency. She was treated first in USA and treatment continued in India. Also, I came to know that with green card, we can stay outside of USA upto a period of one year. Any information greatly appreciated.
Thanks,
 
Kumar_a said:
Dear Sir,
Thanks for your reply. But the circumstances are such that I may not be able to travel back to USA due to wife medical reason for atleast next two months. With that, I would have been out of USA for nearly eight months. When I travel back, will I have problems at port of entry? I remember someone mentioning that at the time of applying for US citizenship, more than 180 days out of the country, if there is any real applicable reason, then 180 days rule may be waived. Is it true? This is a true medical emergency. She was treated first in USA and treatment continued in India. Also, I came to know that with green card, we can stay outside of USA upto a period of one year. Any information greatly appreciated.
Thanks,
Click to expand...

As far as my information is concerned (and I am not an attorney), there is rebuttable presumption that the residence as been abandoned after 6months. After 1 yr the presumption is not rebuttable, but you still can obtain a special visa on exceptional circumstances to come back in after a year, but its tough to get.

Thus you can rebutt the presumption if returning, after 6 mnths but within a year. The success is dependent on your situation, and how you can show intent, through documentation, if questioned at the POE. There is many threads on this board which give pratical ways to show intend not to abondon residence. I would suggest your chances are high, if you own real estate, have a job here or offer, have maintained a rental place, have faimly in the USA, can show medical documentation, etc..

The below text may help you..

"In order for you to maintain your permanent resident status,
it is required that your absence abroad must be temporary. The
inquiry revolves around whether an alien intended to retain his
permanent residence status by returning to the United States
"within a relatively short period of time." The term "temporary"
will vary with the facts and circumstances of each case; the
intention of the alien, when it can be ascertained, will control.
Moreover, the intention at the time of departure must be to return
within a relatively short period, fixed by some early event.
Among the factors ordinarily considered in determining whether
the absence was temporary are the :
1) duration of absence,
2) the location of the alien's family ties,
3) property holdings,
4) and job, and
5) his intention with respect to the location of his actual home.

The government is under no obligation to inform him that his absence
will terminate his residence. Although the length of the alien's
absence is not the only factor, a lengthy absence coupled with
establishment of ties abroad may establish abandonment of resident
status. Another factor that may be considered is whether the
traveler had a definite reason for proceeding abroad temporarily.
A lengthy absence may, in certain circumstances, be
satisfactorily explained. Thus, where an alien's absence abroad
was due to his employment by an American company and he maintained
ties in the United States, and where his application to preserve
residence continuity for naturalization purposes had been approved,
the alien's lawful permanent residence status has not been lost.
Moreover, loss of naturalized United States citizenship by voting
in a Mexican election during a visit there did not, by itself,
terminate status as a lawful permanent resident of the United
States.

Some of the factors that have been examined in various decided
cases in this area are:
A. Length of residence in the U.S. since becoming a
permanent resident - generally, the longer you have
resided in the U.S., the stronger your case;
B.ownership of real estate in the U.S.;
C.whether or not U.S. income tax returns have been filed
during the time of absence. In this regard, please note,
YOU MUST NOT FILE INCOME TAX RETURNS AS A NON-RESIDENT.
Please consult with a CPA or tax professional as to what
other options exist.
D. How many prior reentry permits have been granted to the
alien;
I recommend the following specific measures in addition to the
material provided above:
A. If you own real estate in the U.S - do not sell it
prior to departure;
B. Maintain your main savings account in the U.S.
C. Continue to maintain your driver's license and all credit
cards
D. Pay U.S. taxes as a resident
E. Maintain correspondence with all your friends and family
in the U.S.
F. Keep all your telephone bills showing various calls to
the U.S.
This list is not meant to be exhaustive. The rule of common
sense prevails."

I would suggest you make contact with a USA attorney to help prepare your POE story and ensure its well documeted when your returning. Also if you can come back to the USA even for a day (with a little work ahead and getting past the POE) you can see if you can file for an re-entry permit on emergency grounds (again not easy) but that will give you up to two years on mutliple visits into the USA with more protection then the norm. Hope this helps? I suggest working with a good attorney if the card means a lot to you. Citizenship will have to wait until you are back and more settled.

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