Physical presence N-400

[Operator 1,927]

My wife received her conditional greencard 9/2012 and her unconditional greencard 1/2015.

 

From 2/2015 to 11/2016 she was outside of the US.  

 

My understanding is that since she qualifies under 319(a) as the spouse of a US citizen she would be eligible to apply 2 years and 1 day after we returned.

 

Am I missing any other requirements related to the physical presence requirements?

 

 

 

[GreatDane 366]

10 minutes ago, Operator said:

My wife received her conditional greencard 9/2012 and her unconditional greencard 1/2015.

 

From 2/2015 to 11/2016 she was outside of the US.  

 

My understanding is that since she qualifies under 319(a) as the spouse of a US citizen she would be eligible to apply 2 years and 1 day after we returned.

 

Am I missing any other requirements related to the physical presence requirements?

 

 

 

No, she doesn't have continuous residence in the US and has to start over. She'll need three years of continuous residency. After she left for China for such an extended period, the period before no longer counts for continuous residency. She was just a few months shy of continuous residency when she left. I believe she'd be eligible in 11/2019, but be able to apply 90 days prior so 8/2019.

[zainabbai 1]

7 hours ago, GreatDane said:

No, she doesn't have continuous residence in the US and has to start over. She'll need three years of continuous residency. After she left for China for such an extended period, the period before no longer counts for continuous residency. She was just a few months shy of continuous residency when she left. I believe she'd be eligible in 11/2019, but be able to apply 90 days prior so 8/2019.

You are correct but the 90 days rule no longer applies as there was break of continuous residence.

[Operator 1,927]

18 hours ago, GreatDane said:

No, she doesn't have continuous residence in the US and has to start over. She'll need three years of continuous residency. After she left for China for such an extended period, the period before no longer counts for continuous residency. She was just a few months shy of continuous residency when she left. I believe she'd be eligible in 11/2019, but be able to apply 90 days prior so 8/2019.

Thanks for your input.

 

This is from CFR 8 316.5

 

" (ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with §316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under §316.2 (a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resume permanent residence."

 

My understanding is there are two separate requirements, physical presence and continuous residence.  For those that only require 3 years of continuous residence only require 18 months of physical presence versus 30 months for those who require 5 years of continuous residence.

 

The interrelation being that if she has met the 18 months of physical presence then she would be eligible to file 2 years and 1 day following her return to the US and resuming permanent residence.

 

The USCIS policy manual calls it "eligibility after break in residence" but what I think you are saying is that there must be 3 years of continuous residency regardless of the other requirements.  If that is the case what is the above section referring to?

 

Like everything else it's not so straight forward.

[GreatDane 366]

30 minutes ago, Operator said:

Thanks for your input.

 

This is from CFR 8 316.5

 

" (ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with §316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under §316.2 (a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resume permanent residence."

 

My understanding is there are two separate requirements, physical presence and continuous residence.  For those that only require 3 years of continuous residence only require 18 months of physical presence versus 30 months for those who require 5 years of continuous residence.

 

The interrelation being that if she has met the 18 months of physical presence then she would be eligible to file 2 years and 1 day following her return to the US and resuming permanent residence.

 

The USCIS policy manual calls it "eligibility after break in residence" but what I think you are saying is that there must be 3 years of continuous residency regardless of the other requirements.  If that is the case what is the above section referring to?

 

Like everything else it's not so straight forward.

If you read the entirety, this exemption only applies to spouses of military personnel. If she was your spouse and you were actively in the armed services, this exemption applies. Otherwise, it's a full 3 years.

[Operator 1,927]

3 minutes ago, GreatDane said:

If you read the entirety, this exemption only applies to spouses of military personnel. If she was your spouse and you were actively in the armed services, this exemption applies. Otherwise, it's a full 3 years.

 

For military spouses time abroad still counts as residency so and exemption wouldn't be required.  So I'm not sure if you are correct.

 

(6)Spouse of military personnel. Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as residence in any State or district of the United States for purposes of naturalization under section 316(a) or 319(a) of the Act if, during the period of time abroad, the applicant establishes that he or she was:

(i) The spouse of a member of the Armed Forces;

(ii) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member's official orders; and

(iii) Accompanying and residing abroad with that member of the Armed Forces in marital union in accordance with 8 CFR 319.1(b).

[GreatDane 366]

7 minutes ago, Operator said:

 

For military spouses time abroad still counts as residency so and exemption wouldn't be required.  So I'm not sure if you are correct.

 

(6)Spouse of military personnel. Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as residence in any State or district of the United States for purposes of naturalization under section 316(a) or 319(a) of the Act if, during the period of time abroad, the applicant establishes that he or she was:

(i) The spouse of a member of the Armed Forces;

(ii) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member's official orders; and

(iii) Accompanying and residing abroad with that member of the Armed Forces in marital union in accordance with 8 CFR 319.1(b).

I think you're right. It looks like two years and one day, but you can't do the 90 days early. I also saw some posts where immigration officers hadn't heard of the rule and rejected the case.

[Operator 1,927]

 

2 hours ago, GreatDane said:

I think you're right. It looks like two years and one day, but you can't do the 90 days early. I also saw some posts where immigration officers hadn't heard of the rule and rejected the case.

It's as clear as mud.

 

Since there isn't any urgency and to avoid unnecessary heartache she'll probably just wait until November 2019 and apply.

 

Thanks for your input.

[GreatDane 366]

15 minutes ago, Operator said:

 

It's as clear as mud.

 

Since there isn't any urgency and to avoid unnecessary heartache she'll probably just wait until November 2019 and apply.

 

Thanks for your input.

That's USCIS for you.  If you can wait, I would. Alternatively, you could consult an immigration attorney. I know they do free consults for free and it's really only one question. But you know how that can go, too.

[Operator 1,927]

8 minutes ago, GreatDane said:

That's USCIS for you.  If you can wait, I would. Alternatively, you could consult an immigration attorney. I know they do free consults for free and it's really only one question. But you know how that can go, too.

 

The only reason she is considering getting a blue passport is because she lost her PRC passport in a fire (with a B1 visa in it) back in 2009 and was issued a replacement.  This information is in the CBP database and every time we come into the US she gets jammed into secondary to be asked "did you lose a passport in 2009?"

 

She'd rather hassle with secondary than to pay a lawyer I'm sure.

[GreatDane 366]

48 minutes ago, Operator said:

 

The only reason she is considering getting a blue passport is because she lost her PRC passport in a fire (with a B1 visa in it) back in 2009 and was issued a replacement.  This information is in the CBP database and every time we come into the US she gets jammed into secondary to be asked "did you lose a passport in 2009?"

 

She'd rather hassle with secondary than to pay a lawyer I'm sure.

Seriously? All these years later? Frustrating. Very, frustrating. Not as frustrating as having to go through secondary, but they're just doing their jobs. We have secondary each time since GC is expired and only have I551 stamp (waiting on ROC/Naturalization). It stresses me out each time. I can't wait to be done.