American living in EU with GC spouse living in US

[LiveFree603 0]

I am an American citizen currently working/living as a teacher in Europe, not connected to any US company or Armed Forces. My husband is the Green Card holder and has stayed with me for almost four months now, but intends to return to the USA in the coming weeks.

He has been a Green Card holder for two years now, lived in the USA for more than 550 days at this point, and wishes to become a US citizen next year through naturalization.

Our plan is that he returns to the USA (with one of our daughters who are both Americans) to live in a shared household with my parents until next summer, when we reunite and begin the naturalization process.

- Will it become a problem, that I am (and the other daughter) will only visit the US and the grandparents a few times in the coming 10 months in the naturalization process (i.e. tax return with foreign income/employer, different addresses etc.)?

- If so, is there a way to avoid this problem?

Thank you for a quick response!

[NancyNguyen 1,658]

One requirement of 3 years rule is that you have communal residence. If you guys don't have it, and they find out, interview result might be terrible. To avoid it, he can file under 5 years rule or you move back with him until everything is in order.

[LiveFree603 0]

I have a contract with a school that I cannot terminate. Would it help if he got a re-entry permit (I-131) and then start the naturalization process once we are back in the States as a family?

[Penguin_ie 5,996]

yes, if you only start the naturalisation process a few months after you return, and have lived together in the USA, then that will definitely be better.

Is getting him US citizenship asap a priority? Because if he moves abroad with you on a re-entry permit, while he can hold on to his greencard, it may interrupt his continual residence needed for naturalisation.

[LiveFree603 0]

The I-131 might not be necessary, seeing that he could start the naturalization process next June which is less than one year from now, as it is quite important to get his US passport.

But I have found the following and was wondering if we could use it in our case. Him visiting us in the coming months may also appear more reasonable considering our involuntary separation. What do you think?

Involun​tary S​eparation​

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Under very limited circumstances​ and where there is no indication of marital disunity​, an applicant may be able to establish that he or she is living in marital union with his or her ​U.S. citizen ​spouse even though the applicant does not actually reside with citizen spouse. ​An applicant ​is not​ ​made ineligible for naturalization for not living in marital union if ​the separation is due to ​circumstances beyond his or her control, such as​:​ [32]

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•S​ervice in the ​U.S. a​rmed ​f​orces​;​ or​
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•Required travel or relocation for​ ​employment​.​

[NancyNguyen 1,658]

Well it reads "Very limited circumstances"

[LiveFree603 0]

Thanks for your advice. I have two more questions regarding the I-131 form. Fact is that I will finish my contract next July and then return to the States. If he applied for the re-entry permit in the States in the coming weeks and remained there until the biometrics were taken, hopefully before Christmas, and then return to Europe:

Would it be smarter for us to stay together in Europe from January until summer and then return together, which means he would be out of the US for around 6 months or a bit more?

Or return a few times during this period and stay for a few weeks, maybe a month, making sure that our American household, grandparents etc. were fine, and therefore break up that long time in smaller chunks?

All in the interest of us being able to start the naturalization process next summer, considering that he has more than half of the required time of physical presence under his belt, and us constantly living under the same roof.

Last question, will it become a problem, when I will have to file a foreign tax credit or income for this year? What is the best way to avoid "questions" at the interview, when it comes to this issue (I am on a temporary contract until next July) but had to register our family in the system, in order to get paid etc. (my husband certainly has and will not work here)?

I do appreciate your help!

[lyzdude 2]

I am in a similar situation and have done some research on this issue. Check the following page.

http://www.uscis.gov...-0-0-31522.html

It governs the naturalization of "persons living in marital union with US citizen spouse", i.e. the three-year naturalization. Look at Sec. 319.1(b)(2)(ii)©, near the bottom of the page,

© Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

You can argue that your living apart is involuntary because of "occupational demands" and that the need of having an income to support your family is a necessity of life and beyond your control. But of course, the burden of proof is with you. Of course, it may be easier if your husband just waits for the five-year naturalization.

I talked with a lawyer and she seemed to think it should be OK to apply after 3 year of my wife getting her LPR, even though there will be periods of living apart during the three years.

I'd suggesting consulting with an immigration lawyer or even retaining one for the application. The lawyer can probably tell you what the best way to make your case is. That is what I intend to do when my wife is up for naturalization next year under the 3-year clause.

[Dave&Roza 748]

Be careful here. There are two issues you are dealing with: 1) maintain his LPR status, and 2) maintaining his eligibility for citizenship. To keep the LPR status one just takes trips of less than 6 months. For trips greater than 6 months but less than a year, the CBP may question why he was outside the US for so long, but they typically let a LPR into the US. For trips great than 1 year, but less than two a re-entry permit is required. All of this applies to keeping the GC and has nothing what so ever to do with maintaining his eligibility for USC.

He must maintain continuous residence in the US. This is what the USCIS has to say on that:

C. Breaks in Continuous Residence​

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An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.​ ^[9] See INA 316(b).

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•Absences of more than 6 months but less than one year; and​
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•Absences of one year or more. ​

3. Eligibility after Break in Residence​

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An applicant who is required to establish ​continuous​ residence for at least five years​ ^[15] See INA 316(a). and whose application for naturalization is denied for an absence of one year or longer​,​ may apply for naturalization four years and one day after returning to the United States to resume permanent residence.​ An applicant who is subject to the three-year continuous residence ​requirement​ ^[16] See INA 319(a). may apply two years and one day after returning to the United States to resume permanent residence.​ ^[17] See 8 CFR 316.5©(1)(ii).

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D. Preserving Residence for Naturalization (​Form N-470​)​

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Certain applicants​ ^[18] See Chapter 5, Modifications and Exceptions to Continuous Residence and Physical Presence [12 USCIS-PM D.5], for classes of applicants eligible to preserve residence. may seek to preserve their residence for an absence of one year or more to engage in qualifying employment abroad.​ ^[19] The applicant may also need to apply for a reentry permit to be permitted to enter the United States. Such applicants must file an Application to Preserve Residence for Naturalization Purposes (​Form N-470​) in accordance with the form instructions.​

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In order to qualify, the following criteria must be met:​

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•The applicant must have been physically present in the ​United States​ as an LPR for an uninterrupted period of at least one year prior to working abroad.​

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•The application may be filed either before or after the applicant’s employment begins, but before the applicant has been abroad for a continuous period of one year.​ ^[20] See 8 CFR 316.5(d).

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In addition, the applicant must have been:​

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•Employed with or under contract with the U.S. Government or an American institution of research​ ^[21] See 8 CFR 316.20. See www.uscis.gov/AIR for lists of recognized organizations. recognized as such by the Attorney General;​

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•Employed by an American firm or corporation engaged in the development of U.S. foreign trade and commerce, or a subsidiary thereof if more than 50 percent of its stock is owned by an American firm or corporation; or​

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•Employed by a public international organization of which the ​United States​ is a member by a treaty or statute and by which the applicant was not employed until after becoming an LPR.​ ^[22] See INA 316(b). See 8 CFR 316.20.

Dave

Edited October 9, 2015 by Dave&Roza