Continuous Residence - Leaving for college

[Eric132 0]

Hello everyone,

I'm a 19 year old Canadian Citizen living in the United States with my family. We have been living in the USA since June 2008, and we became Green Card holders November 2010. I believe one of the requirements to become a US Citizen is to have 5 years of continuous residence; meaning if you leave the country for more than 6 months, your continuous residence starts over.

I may be leaving to Canada for college in the next year. I plan to live in the US after college.

Now, my question is, is there any way for me to maintain my Green Card, and not break my continuous residency? I'm not trying to cheat the system, and want to know if there is any legal way of doing this. And for the record, it is just me moving; my family will be remaining in the United States.

Thank you in advance everyone!

[VanessaTony 3,567]

There are ways to maintain your LPR status (you will need to ensure you are enrolled as an LPR of the US in Canada, not a Canadian. File taxes in the US etc etc) but NOT ways to not break continuous residency. You leave the country for any period and you've broken it.

Periods outside the US of 6 months or more (but less than 12) PAUSES the USC clock. Periods of 12+ months or more resets it.

Any period outside though IS taken into account for when you're eligible. Have a read of the N-400 forms which tell you how many months in the 5 year period you have to have been in the US.

Edited February 19, 2012 by Vanessa&Tony

[Eric132 0]

Hi Vanessa and Tony,

Thanks for the quick response. Appreciate it!

This is what I found:

"You must have been physically present in the United States for 30 months out of the 5 years"

This is just a theoretical question, of course. But given what you quoted, couldn't one simply return to the United States for a short period of time prior to hitting 6 months out of the country (every 5 minutes, for example), in order to keep the clock running? I mean, I don't see anything about that on the USCIS website.

[NickD 203]

Can see an advantage of going to ones home country for college, in the case of my stepdaughter, in her home country, could have gone to college for free. But complications arose in losing a ton of credits, then trying to get a job here with a foreign degree. Granted, Canada is much more like the USA, but wondering why you are choosing Canada. What about the long term considerations since you plan on staying here?

[Eric132 0]

Can see an advantage of going to ones home country for college, in the case of my stepdaughter, in her home country, could have gone to college for free. But complications arose in losing a ton of credits, then trying to get a job here with a foreign degree. Granted, Canada is much more like the USA, but wondering why you are choosing Canada. What about the long term considerations since you plan on staying here?

Great question Nick. Primary reason is cost, as you said. Much cheaper in Canada. Also, I am currently on the West Coast, and my plan is to eventually live on the East Coast. With that in mind, the school I've chosen to attend in Canada is very well known on the East Coast. I'm certain it won't cause any problems with job placement and such. Nonetheless, I have applied to a number of American universities and will make my final decision in the next few months

[jhm3 15]

If others know of specific cases in which USCIS has treated a temporary period of study abroad as constituting a break in residence for naturalization purposes, they can correct me, but my reading of the relevant rules and definitions is that attending college in another country wouldn't necessarily interrupt a naturalization applicant's continuity of residence, as long as his primary residence/permanent home/domicile remains in the United States throughout the period of his studies.

The regulations (8 CFR Part 315.5(a); see link below) define residence for naturalization purposes as "domicile, or principal actual dwelling place, without regard to the alien's intent." In most cases, the location of an applicant's domicile would be determined by looking at where he or she has physically resided during a given period, but it would probably be recognized that a college student's dormitory or campus apartment is not his or her "domicile" or primary residence, even if he or she does spend the better part of several years there. Indeed, the regulations on residence for naturalization purposes (8 CFR Part 315.5(b)(2)) specify that a student can apply for naturalization either in the state where his or her educational institution is located (not a possibility if the institution is in Canada, obviously), or "in the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process," which suggests an acknowledgement of the fact that the place of residence for naturalization purposes of a college student is often his or her family home.

To preserve continuity of residence for naturalization purposes, you would nonetheless have to return to the United States at least once a year and preferably at least once every six months. By law, absences of more than a year do interrupt continuous residence for naturalization purposes, unless -- as an employee of the US government or certain US firms -- you are eligible to file Form N-470 to preserve continuous residence while abroad; that wouldn't be relevant in this case. If you spend more than six months outside the United States at any one time, there is a rebuttable presumption that there has been a break in continuous residence, but that presumption can be overcome if you can present compelling evidence that your primary residence remained in the United States while you were abroad. They would be interested in seeing that your family remained in the United States and that you continued to have access to your US home, for example, and other evidence of ongoing ties (bank accounts, driver's license, health insurance coverage, etc.) would be helpful, too. Also, when re-entering the United States after an extended absence, you might be called upon to demonstrate that you have not abandoned your US permanent residency status by moving abroad; this issue is less likely to come up if you return more often, but in any event, as a student temporarily abroad for a definite purpose and a fixed period of time with ongoing family ties to the United States, you shouldn't have difficulty establishing that you have maintained your status.

The requirement that might end up causing you more difficulty is the physical presence requirement. If you are going to be spending most of the next several years studying in Canada, it might be difficult to have the 30 months physically in the US that you will need when you reach the 5-years-as-an-LPR mark in November 2015. Take a look at the calendar and plan carefully. Hope this helps ...

Regulations on Residence for Naturalization Purposes: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11185/0-0-0-30650/0-0-0-30706.html

[Eric132 0]

If others know of specific cases in which USCIS has treated a temporary period of study abroad as constituting a break in residence for naturalization purposes, they can correct me, but my reading of the relevant rules and definitions is that attending college in another country wouldn't necessarily interrupt a naturalization applicant's continuity of residence, as long as his primary residence/permanent home/domicile remains in the United States throughout the period of his studies.

The regulations (8 CFR Part 315.5(a); see link below) define residence for naturalization purposes as "domicile, or principal actual dwelling place, without regard to the alien's intent." In most cases, the location of an applicant's domicile would be determined by looking at where he or she has physically resided during a given period, but it would probably be recognized that a college student's dormitory or campus apartment is not his or her "domicile" or primary residence, even if he or she does spend the better part of several years there. Indeed, the regulations on residence for naturalization purposes (8 CFR Part 315.5(b)(2)) specify that a student can apply for naturalization either in the state where his or her educational institution is located (not a possibility if the institution is in Canada, obviously), or "in the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process," which suggests an acknowledgement of the fact that the place of residence for naturalization purposes of a college student is often his or her family home.

To preserve continuity of residence for naturalization purposes, you would nonetheless have to return to the United States at least once a year and preferably at least once every six months. By law, absences of more than a year do interrupt continuous residence for naturalization purposes, unless -- as an employee of the US government or certain US firms -- you are eligible to file Form N-470 to preserve continuous residence while abroad; that wouldn't be relevant in this case. If you spend more than six months outside the United States at any one time, there is a rebuttable presumption that there has been a break in continuous residence, but that presumption can be overcome if you can present compelling evidence that your primary residence remained in the United States while you were abroad. They would be interested in seeing that your family remained in the United States and that you continued to have access to your US home, for example, and other evidence of ongoing ties (bank accounts, driver's license, health insurance coverage, etc.) would be helpful, too. Also, when re-entering the United States after an extended absence, you might be called upon to demonstrate that you have not abandoned your US permanent residency status by moving abroad; this issue is less likely to come up if you return more often, but in any event, as a student temporarily abroad for a definite purpose and a fixed period of time with ongoing family ties to the United States, you shouldn't have difficulty establishing that you have maintained your status.

The requirement that might end up causing you more difficulty is the physical presence requirement. If you are going to be spending most of the next several years studying in Canada, it might be difficult to have the 30 months physically in the US that you will need when you reach the 5-years-as-an-LPR mark in November 2015. Take a look at the calendar and plan carefully. Hope this helps ...

Regulations on Residence for Naturalization Purposes: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11185/0-0-0-30650/0-0-0-30706.html

Thank you VERY much, that was a spectacular answer. I'll certainly have a look at that link.

As far as the 30 months requirement, you are right. So far, it looks like I've been in the US as an LPR for roughly 17 months. I'll have to look into that more, and likely speak with an immigration lawyer.

Once again, thanks for your response.

Oh, one more thing. Let's say, by November 2015 I don't meet the 30 months requirement. By that time, I would likely be back in the US (done college), and given I visited, would be at roughly 25 months of residence. Couldn't I simply wait until April of 2016 then apply for naturalization (given I didn't break the continuous residency requirement)?

Edited February 19, 2012 by Eric132

[jhm3 15]

Thank you VERY much, that was a spectacular answer. I'll certainly have a look at that link.

As far as the 30 months requirement, you are right. So far, it looks like I've been in the US as an LPR for roughly 17 months. I'll have to look into that more, and likely speak with an immigration lawyer.

Once again, thanks for your response.

Oh, one more thing. Let's say, by November 2015 I don't meet the 30 months requirement. By that time, I would likely be back in the US (done college), and given I visited, would be at roughly 25 months of residence. Couldn't I simply wait until April of 2016 then apply for naturalization (given I didn't break the continuous residency requirement)?

You're welcome, and sure, waiting until April 2016 to file your application should be fine, as long as you do have the required 30 months of physical presence during the five years immediately prior to that date. Indeed, it could help to overcome any questions the immigration officer might have about your maintenance of residence if you have been living full time back in the US for a while at the time of your application and interview. Good luck!

[ConcordUser 18]

Hi Eric, you need to define what your priorities are and then take the right decision. I was in the same boat as you are. After living in US for 32 years I have decided to goto Medical School and become a Medical Doctor. I have choose Caribbean Medical school due to its cost and accelerated program. I several class mates in my class who are from US and Canada studying here. That is an option you want to consider if you want to become a Doctor and work either in US or in Canada. Other option have you considered taking online courses in Canadian school that you can continue school after you become US and move to Canada? Also you can live / work in border cities like Detroit and cross the border and enter into Canada and take classes there and still maintain your US residency status. Also keep in mind in US there are community colleges which are less expensive and you can transfer several courses to college programs. There are lot of options available. Define your goals and we can better advice you. By the way I have only AS Degree from community college and I make lot more money than Doctors and PhD's. It all depends on you what field you choose and what experience you gain in your work determines how much more you can earn. Also there is a program called CLEP. Where you can study and take the test and if you pass the exam you'll get college credit. Test costs only $77 and you can get credits unto 8 depending on the subject. Technically you can get unto 96 credit hours through clep and you can finish your degree at college in 9-12 months. My 12 year old Twin daughters already taking CLEP tests and gaining credits towards college. Sort through your thoughts and let us know. Feel free to send me private message with your questions and I'll help try to answer them. By the way I completed my interview and waiting for the Oath Ceremony. I was worried and confused like you and people on this forum helped me and walked me through the process.

Edited February 19, 2012 by ConcordUser