Waiver of 30 months Physical Presence for dependent when US Citizen primary is abroad

[BASURESH]

Here’s the situation.

Myself and my wife are US citizens. My mother-in-law is our dependent and we have also filed IRS tax returns as proof. She obtained her green card and is eligible to file for citizenship in September 2006.

Currently, I am employed by a foreign company in a foreign country and in 2004, my family moved to this country. My mother-in-law also moved out of the US.

She has about 620 days total stay in the US so far and will need an additional 300 days to meet the 30 months physical presence in the US test. At the moment, it looks like she will NOT be able to stay in the US the 300 days since we are abroad.

We would like to know if:
(1) the 30 months physical presence in the US requirement can be waived in her case because her supporters, who are US citizens, are abroad, or
(2) there are any other feasible options.

We would appreciate any help, guidance, information relevant to this special situation. Thanks in advance for your help.

 

[sg_orl]

Here’s the situation.

Myself and my wife are US citizens. My mother-in-law is our dependent and we have also filed IRS tax returns as proof. She obtained her green card and is eligible to file for citizenship in September 2006.

Currently, I am employed by a foreign company in a foreign country and in 2004, my family moved to this country. My mother-in-law also moved out of the US.

She has about 620 days total stay in the US so far and will need an additional 300 days to meet the 30 months physical presence in the US test. At the moment, it looks like she will NOT be able to stay in the US the 300 days since we are abroad.

We would like to know if:
(1) the 30 months physical presence in the US requirement can be waived in her case because her supporters, who are US citizens, are abroad, or
(2) there are any other feasible options.

We would appreciate any help, guidance, information relevant to this special situation. Thanks in advance for your help.

Did you file for your mother-in-law's reentry permit before she left with you to this foreign country for extended stay out of US? If she has been out of US since 2004, and has not even visited US, then she has already broken the continous residency rule, i.e. away for more than 1 year. If that's the case then she wouldn't qualify to apply for citizenship in Sep. 2006. In that case it'll be 4 years + 1 day from the time she returns to the US. If she didn't apply for a reentry permit before she left US, then she has already abandoned the permanent residency.

There are very limited waivers to the 30 months physical presence. Only in cases when a spouse is married to someone serving in the armed forces and is stationed abroad, or married to a diplomat. In normal cases, there are no other alternatives.

 

[Skorpie]

I'm not sure if mother-in-law will qualify for this exemption. I know that this will work in case of a spouse - but a US citizen spouse MUST work for a US company abroad (or be in military etc) not foreign. I just got my citizenship using this provision of the law. The residence requirement was waived in my case (but I did have a permanent GC, that's also important).

 

[johnnkamala]

How carefully did they check on your entries and exits while you were overseas? I have had a GC for 24 years and worked overseas with the US military much of that time. I can't possibly reconstruct the record of every entry and exit for that period with any real accuracy. I filed a FOIA request for their data in that regard (two years ago) but there has been no response.

 

[BASURESH]

Did you file for your mother-in-law's reentry permit before she left with you to this foreign country for extended stay out of US? If she has been out of US since 2004, and has not even visited US, then she has already broken the continous residency rule, i.e. away for more than 1 year. If that's the case then she wouldn't qualify to apply for citizenship in Sep. 2006. In that case it'll be 4 years + 1 day from the time she returns to the US. If she didn't apply for a reentry permit before she left US, then she has already abandoned the permanent residency.

There are very limited waivers to the 30 months physical presence. Only in cases when a spouse is married to someone serving in the armed forces and is stationed abroad, or married to a diplomat. In normal cases, there are no other alternatives.

Thanks for replying.

The reentry permit has not been filed since she has always come back within a year's time. Hence the continuous residency rule is not violated. The major problem though is the TOTAL number of months she needs to be in the US. What if she cannot meet the 30 months requirement? Can she ask for a waiver of this requirement given our special situation?

 

[BASURESH]

How carefully did they check on your entries and exits while you were overseas? I have had a GC for 24 years and worked overseas with the US military much of that time. I can't possibly reconstruct the record of every entry and exit for that period with any real accuracy. I filed a FOIA request for their data in that regard (two years ago) but there has been no response.

I am also wondering about that. I did struggle to find out that information since US immigration does not stamp at the time of exit. Can you provide me some more information about the FOIA request and how that can be filed on her?

 

[sg_orl]

Thanks for replying.

The reentry permit has not been filed since she has always come back within a year's time. Hence the continuous residency rule is not violated. The major problem though is the TOTAL number of months she needs to be in the US. What if she cannot meet the 30 months requirement? Can she ask for a waiver of this requirement given our special situation?

She has been lucky to reenter without much convincing the officer at the POE. But since she has stayed abroad > 6 months, in all likelyhood that has broken the continuous residency requirement FOR NATURALIZATION PURPOSES. Re-admitting to US after a stay abroad > 6 months does not automatically make it ok for naturalization. During N-400 interview, officer will go thru' the dates quite closely and the burden of proof will be on your mother to prove otherwise.

 

[johnnkamala]

My understanding is that the waiver is for only certain specific circumstances. Detailed in the regs is being outside the US as a missionary, serving in the military, or accompanying the citizen spouse who is overseas on official US government orders on government business. Working for a US company overseas does not in itself qualify unless that company is a US government contractor doing work for the US government. I wish I could be more encouraging but I have been fighting this same issue for years. For example, I am a US citizen and worked overseas for a foreign registered company ON A US GOVERNMENT CONTRACT for six years but it didn't count toward my wife's residency because it wasn't a US company. I now work for a US company on the same US government overseas contract on official US government orders and now the time that she is accompanying me counts toward her residency. The conditions for the residency waiver are quite specific.