US Citizenship for a spouse of a US citizen working abroad

[weverifyit]

I moved from USA to India to work for a US corporation, in 2002. I, myself, am a US citizen and when my wife moved with me in 2002, she had met all the eligibilty criteria for becoming a US citizen.

She has not gone back to USA since then (2002).

Can she still apply for US citizenship under provision 319(b) by filing the from N - 400?

Thanks

 

[boatbod]

Well, there is a clause in the N-476 Guide To Naturalization that implies she might be able to. I've not really researched this area in 8 CFR, so I don't know for sure.

If you are at least 18 years old and:
Are the spouse of a U.S. citizen who is one of the following:
+ ...
+ An employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States;
+ ...​

Maybe time to consult with an immigration lawyer.

 

[weverifyit]

Can the Green card expire then

Can one invoke 319(b) for staying eligible for permanent residency also?

Thanks

 

[boatbod]

Quite possibly, but since I'm neither particularly familiar with 319(b) nor a lawyer, I suggest seeking professional advice to help prepare the case.

 

[weverifyit]

Will a current green card be required at the time of interview

Since we will invoke section 319(b) to waive off the physical presence requirement for my wife and apply for her citizenship, while staying in India itself, will she need a renewed green card because the date on the current green card is expiring soon.

 

[equate]

I moved from USA to India to work for a US corporation, in 2002. I, myself, am a US citizen and when my wife moved with me in 2002, she had met all the eligibilty criteria for becoming a US citizen.

She has not gone back to USA since then (2002).

Can she still apply for US citizenship under provision 319(b) by filing the from N - 400?

Thanks

I am of an opinion that your wife is not eligible for citizenship petition because of 2 rules.

1. your wife must be a LPR at the time of interview.
Your wife is no longer a LPR because she stayed out of US since 2002 without any re-entries.

2. The form N-400 has to be filed prior to departing the U.S.
I assume this was not done, since it's already been 5 years.

Check for other opinions. But the rules are clear.

 

[rwsh]

I believe that she might indeed qualify. A friend of mine is a US citizen and married a Chinese national while working in China for a bone-fide US organization.

His wife qualified for (a) expedited Green Card (b) bypassing naturalization residency requirements (c) Both Green Card and naturalization papers were filed with the US consulate in Guanzhou.

In fact, I seem to remember that the naturalization papers were filed very close to the same time as the Green Card application.

Talk to the nearest US Embassy or Consulate. You might well be pleasantly surprised.

 

[weverifyit]

Invoking 319 (b) Should Annul All THe Other Clauses

If I invoke 319(b), she gets a waiver from the continuous residency/physical presence in USA clause.

Once this requirement is waived under 319(b), they cannot come back & say, Oh by the way, her green card expired because of not being present in USA, so 319(b) is a waste.

Your green card has to expire if you were not continuously resident in USA for more than one year without a reentry permit. That is when 319(b) kicks in for spouses of US citizens working abroad for US corporations.

Otherwise, 319(b) would become redundant and there is no way anyone can invoke it.

So, the only question unanswered is , should she have filed N 400 before leaving USA.

Again, invoking 319(b) should mean that she never left USA.

 

[boatbod]

When I read 8 CFR 319 I didn't see anything specifically saying the N-400 had to be filed prior to departure. The only departure-related topic was that if you naturalize under 319(b) you MUST depart the US within 30 days after taking oath.

However, these rules are unfamiliar to me, so don't just take my word for it.

 

[equate]

It would be naive to think that any LPR could be allowed to come and go as they please without having to file proper papers with CIS to waive continuous and/or physical presence requirments before departing. For a spouse of LPR, that is N-470 and for a spouse of US citizen, that is N-400. The spouses of US citizens are given a great leeway as filing of N-400 waives both continuous and physical presence while N-470 waives only the continuous presence requirement for spouses of LPR. The application has to be filed before leaving the country.

Clause 319(b) is only applicable for the purpose of citizenship petition. It allows you to file N-400 before qualifying for 3 or 5 years residence (waiving physical presence requirement). It also ensures interviewing officers won't grill you even if you had a trip longer than 6 months since the filing date of application, and do not live in U.S. at the time of interview, which are basis for denials in normal circumstances. The green card is a separate matter and still has to be maintained accordingly by the rule. If applicable, a re-entry permit should be obtained. If you are out of U.S. for more than a year, you'll be denied at the point of entry without re-entry permit as entry officers have no responsibility for checking for your waiver status, and they'll most likey take your green card away.

Also it's not enough just working for US company. Your job has to be for the benefit of US. This is stated as the following: "an employee of an American-owned firm or corporation engaged in the development of foreign trade and commerce for the United States" The clause is not clear whether it is employee or company who has to be engaged in the development of foreign trade. It is either soley upto IO's judgement whether one's employment meets this criteria after reviewing the application or CIS maintains a list of organization that are pre-approved by attorny general.

Of course, you should seek professinal opinions who have experience in this matter before taking any advice on this board.

 

[equate]

When I read 8 CFR 319 I didn't see anything specifically saying the N-400 had to be filed prior to departure. The only departure-related topic was that if you naturalize under 319(b) you MUST depart the US within 30 days after taking oath.

However, these rules are unfamiliar to me, so don't just take my word for it.

What OP is trying to do is retroactively wave the requirement, and that is contrary to the standard practice of CIS. The common sense tells me that you can't just stay out of US for 5 years without telling CIS and still maintain the immigration benefit. It is against the very nature of USCIS.

 

[boatbod]

I do see your point. There does however seem to be some wiggle room for interpretation of a couple factors, hence my suggestion to consult a professional, or at least someone expert in this subsection of 8CFR.

 

[equate]

I do see your point. There does however seem to be some wiggle room for interpretation of a couple factors, hence my suggestion to consult a professional, or at least someone expert in this subsection of 8CFR.

I noticed in Guide to Naturalization on page 20. The afore-mentioned requirement is also noted:

""You will be proceeding to join your spouse whose work under orders of qualifying employee will continue for at least 1 year after the date you will be naturalized. Form N-400 should be filed prior to departing."

It appears to be a clear case and no wiggle room.

 

[weverifyit]

I noticed in Guide to Naturalization on page 20. The afore-mentioned requirement is also noted:

""You will be proceeding to join your spouse whose work under orders of qualifying employee will continue for at least 1 year after the date you will be naturalized. Form N-400 should be filed prior to departing."

It appears to be a clear case and no wiggle room.

I STILL DO NOT UNDERSTAND THE CONFUSION. THEY CANNOT GIVE WITH ONE HAND AND TAKE AWAY WITH THE OTHER. Thsi is what is avialble at DHS website :

Sec. 319.2 Person whose United States citizen spouse is employed abroad.



(a) Eligibility. To be eligible for naturalization under section

319(b) of the Act, the alien spouse of a United States citizen must:

(1) Establish that his or her citizen spouse satisfies the

requirements under section 319(b)(1) of the Act, including that he or

she is regularly stationed abroad. For purposes of this section, a

citizen spouse is regularly stationed abroad if he or she proceeds

abroad, for a period of not less than one year, pursuant to an

employment contract or orders, and assumes the duties of employment;

(2) At the time of examination on the application for

naturalization, be present in the United States pursuant to a lawful

admission for permanent residence;

(3) At the time of naturalization, be present in the United States;

(4) Declare in good faith, upon naturalization before the Service,

an intention:

(i) To reside abroad with the citizen spouse; and

(ii) To take up residence within the United States immediately upon

the termination of the citizen spouse's employment abroad;

(5) Be a person of good moral character, attached to the principles

of the Constitution of the United States, and favorably disposed toward

the good order and happiness of the United States; and

(6) Comply with all other requirements for naturalization as

provided in



[[Page 726]]



part 316 of this chapter, except for those contained in Sec.

316.2(a)(3) through (a)(6) of this chapter.

(b) Alien spouse's requirement to depart abroad immediately after

naturalization. An alien spouse seeking naturalization under section

319(b) of the Act must:

(1) Establish that he or she will depart to join the citizen spouse

within 30 to 45 days after the date of naturalization;

(2) Notify the Service immediately of any delay or cancellation of

the citizen spouse's assignment abroad; and

(3) Notify the Service immediately if he or she is unable to reside

with the citizen spouse because the citizen spouse is employed abroad in

an area of hostilities where dependents may not reside.

 

[boatbod]

I noticed in Guide to Naturalization on page 20. The afore-mentioned requirement is also noted:

""You will be proceeding to join your spouse whose work under orders of qualifying employee will continue for at least 1 year after the date you will be naturalized. Form N-400 should be filed prior to departing."

It appears to be a clear case and no wiggle room.

Finally I found a link to the full text of INA 319 (1996 version). There is nothing in part (b) that states the person applying for naturalization has to file N-400 before they depart the US, only that they must intend to reside abroad for more than 1 year after naturalization, and that they must return to reside in the US after the overseas assignment is complete.

There is however a clear requirement to be an LPR holder, so this appear to me to be the most problematic area of this case, especially if no reentry permit was files prior to departure.

As demonstrated by the $370/$400 fee misstatement issue (recently corrected), the M-476 Guide to Natz does sometimes contain errors, so likely the "must file prior" statement is another of those. I've found no evidence in either INA 319(b) or 8CFR 319.2 to back it up, thus it would appear not to exist in law.

Either way, weverifyit, you need to consult an immigration attorney familiar with this section of immigration law.

Good luck.

 

[weverifyit]

You are right

Finally I found a link to the full text of INA 319 (1996 version). There is nothing in part (b) that states the person applying for naturalization has to file N-400 before they depart the US, only that they must intend to reside abroad for more than 1 year after naturalization, and that they must return to reside in the US after the overseas assignment is complete.

There is however a clear requirement to be an LPR holder, so this appear to me to be the most problematic area of this case, especially if no reentry permit was files prior to departure.

As demonstrated by the $370/$400 fee misstatement issue (recently corrected), the M-476 Guide to Natz does sometimes contain errors, so likely the "must file prior" statement is another of those. I've found no evidence in either INA 319(b) or 8CFR 319.2 to back it up, thus it would appear not to exist in law.

Either way, weverifyit, you need to consult an immigration attorney familiar with this section of immigration law.

Good luck.

I have consulted an attorney. They are themselves a bit lost.

I agree with you that the only question now is LPR status.

However, if she could not do it because of LPR status, that would amount to giving with one hand & taking away with another. Meaning, you qualify for citizenship but not for permanent residence. That would be strange.

Because, only that person will invoke 319(b) who has not been able to stay in USA.

Another option might be to petition and get her a new GC (temporary to start with). This process takes 6 months. This should work.

 

[Superstring]

I have consulted an attorney. They are themselves a bit lost.

You have to find an attorney that understand oversees issues and special class of immigrants. Not a lot of them around, since most of attys focus on mainstream cases.

Calling an USCIS oversees office would be a good thing, and they will know a lot about your issue. They recieve these calls every day.

I agree with you that the only question now is LPR status.
However, if she could not do it because of LPR status, that would amount to giving with one hand & taking away with another. Meaning, you qualify for citizenship but not for permanent residence.

You are right....I think that she is entitiled to LPR status, too.

I'm pretty much sure about that. I can look later and find you an exact regulations and interpretations.

There are two cases:

1) When you are PR that qualifies for the status HIM/HERSELF (work for government etc)....Then you need to file N-470 and other things....

2) When as a PR you qualify because your spouse works for military, government or bone-fide corporations/institutions....nothing needed to file.

Before you do anything, make sure that your company qualifies for this privilege as bone-fide corporation for an immigration purposes. I would worry about this #1. I think that your company must be listed with AG and approved by AG. You can not claim this "out of the blue"

If possible, you should focus on getting her citizenship rather than extending LPR card.

Good luck!

P.S.: I'm not a lawyer or an immigration expert. Just an ordinary guy. You are soley responsbile for your actions.

 

[boatbod]

I agree with you that the only question now is LPR status.

However, if she could not do it because of LPR status, that would amount to giving with one hand & taking away with another. Meaning, you qualify for citizenship but not for permanent residence. That would be strange.

Strange maybe, impossible no... we are talking about the govt after all!
I suppose it means you'd need to have either submitted the N-400 within the first year of the trip, or held a reentry permit.

 

[equate]

Finally I found a link to the full text of INA 319 (1996 version). There is nothing in part (b) that states the person applying for naturalization has to file N-400 before they depart the US, only that they must intend to reside abroad for more than 1 year after naturalization, and that they must return to reside in the US after the overseas assignment is complete.

There is however a clear requirement to be an LPR holder, so this appear to me to be the most problematic area of this case, especially if no reentry permit was files prior to departure.

As demonstrated by the $370/$400 fee misstatement issue (recently corrected), the M-476 Guide to Natz does sometimes contain errors, so likely the "must file prior" statement is another of those. I've found no evidence in either INA 319(b) or 8CFR 319.2 to back it up, thus it would appear not to exist in law.

Either way, weverifyit, you need to consult an immigration attorney familiar with this section of immigration law.

Good luck.

Your notion about Guide to Naturalization is inaccurate. The previous version of the guide was published years ago, thus some of the clauses became outdated (such as the application fee). The new version updated all outdated issues. I have never seen a single instance for which it contained information that was outright wrong to begin with. When such misinformation occurred, they were always announced or fixed immediately.

The confusion arises because of the different interpretation of the said law. OP prefers to see the law as one that is a blank check, that is, when the statue is invoked by filing the application, it retroactively and irrevocably waive all the past and future obligation in a sweeping manner. It's hard to imagine that was the intention of the law because: 1. Such a blank-check type amnesty is rarely issued and 2. It leaves loopholes for abuse. For instance, any previous break in the continuous residence for any reason would be waived.

The better interpretation of the law is that when the statue is invoked, it waives only the present and future obligation, i.e., the waiver of the continuous and/or physical presence requirements are effective from the date of invoking the statue. This interpretation of the law is further supported by USCIS's requirement to file N-400 prior to departure.

I suppose lawyers can always try to sell the first interpretation as the intention of the law. But I think that leaves a lot of convincing of judges. It might be interesting to study previous court cases if any exists.

 

[boatbod]

Your notion about Guide to Naturalization is inaccurate.

This case not withstanding, I'd wager if there were a conflict between something written in M-476 and either INA or 8CFR, a judge would side with the latter as those are the written laws of the land.