Perm. Res. options marriage us citizen

[ThaOne 101]

3 hours ago, Mollie09 said:

 

You said you were "going by USCIS says" and posted one CBP link and one embassy link. So here's what actual USCIS says:

 

https://www.uscis.gov/green-card/after-we-grant-your-green-card/maintaining-permanent-residence

"You may also lose your permanent resident status by intentionally abandoning it, including but not limited to:

• Moving to another country and intending to live there permanently;
• Declaring yourself a “nonimmigrant” on your U.S. tax returns; or
• Remaining outside of the United States for an extended period of time, unless it’s a temporary absence, as shown by:
  • The reason for your trip;
  • How long you planned to be absent from the United States;
  • Any other circumstances of your absence; and
  • Any events that may have prolonged your absence.

• Note: Obtaining a re-entry permit from USCIS before you leave, or a returning resident visa (SB-1) from a U.S. consulate while abroad, may help show that you planned for this to be a temporary absence."

I echo @aaron2020's suggestion to read more about the issue.

Thanks for posting what I had seen from USCIS first then confirmed on other sites. Instead of trying to be condescending maybe one should pay more attention to what is said. The links I put down state exactly what is written in your copy paste. The OP never mentioned anything about intent on living there permanently, but only until a situation was found in relation to family issues and job situation. The OP would still have assets and a physical address in the US as the spouse would still be here. It is possible with counsel from a REAL lawyer and a tax accountant to find a way to respond to the tax filing issue.

The beginning of the statement says, you "may also lose permanent...". The use of the word "may" clearly stipulates that there are different cases which although I may have been tracked down by aaron and yourself as having been here only 1 month, doesn't mean I haven't read around here and elsewhere, and I can't have seen actual real life cases... anyway "may" is different from "will". On top of that:

* they didn't mention anything about this being permanent

* they didn't declare themselves to be nonimmigrant while filing their taxes

*they didn't remain outside the country for an extended period of time (extended is for more than a year actually, but to play it safe 6 months. Which is the part I actually wanted to highlight).

There is no need to be condescending, or at least to try and be.

My suggestion to you would be to also read around the forums since you have been here since it's creation and you shall see that many people filing for their n400 have an issue with determining residency period and eligibility based on the fact that they were out of the country, and left multiple times in the past years the country and came back for personal or family reasons. They didn't lose their LPR status but didn't meet the residency requirements for NATURALIZATION. Which is why from the start I was very clear that the LPR status and residency status for NATURALIZATION are two seperate things. You may be eligible to keep one, but ineligible to obtain another.

Thanks

Edited October 22, 2020 by ThaOne

[Mollie09 1,543]

11 hours ago, ThaOne said:

Thanks for posting what I had seen from USCIS first then confirmed on other sites. Instead of trying to be condescending maybe one should pay more attention to what is said. The links I put down state exactly what is written in your copy paste. The OP never mentioned anything about intent on living there permanently, but only until a situation was found in relation to family issues and job situation. The OP would still have assets and a physical address in the US as the spouse would still be here. It is possible with counsel from a REAL lawyer and a tax accountant to find a way to respond to the tax filing issue.

The beginning of the statement says, you "may also lose permanent...". The use of the word "may" clearly stipulates that there are different cases which although I may have been tracked down by aaron and yourself as having been here only 1 month, doesn't mean I haven't read around here and elsewhere, and I can't have seen actual real life cases... anyway "may" is different from "will". On top of that:

* they didn't mention anything about this being permanent

* they didn't declare themselves to be nonimmigrant while filing their taxes

*they didn't remain outside the country for an extended period of time (extended is for more than a year actually, but to play it safe 6 months. Which is the part I actually wanted to highlight).

There is no need to be condescending, or at least to try and be.

My suggestion to you would be to also read around the forums since you have been here since it's creation and you shall see that many people filing for their n400 have an issue with determining residency period and eligibility based on the fact that they were out of the country, and left multiple times in the past years the country and came back for personal or family reasons. They didn't lose their LPR status but didn't meet the residency requirements for NATURALIZATION. Which is why from the start I was very clear that the LPR status and residency status for NATURALIZATION are two seperate things. You may be eligible to keep one, but ineligible to obtain another.

Thanks

https://www.uscis.gov/green-card/after-we-grant-your-green-card/maintaining-permanent-residence

"You may also lose your permanent resident status by intentionally abandoning it, including but not limited to:

• Moving to another country and intending to live there permanently;
• Declaring yourself a “nonimmigrant” on your U.S. tax returns; or
• Remaining outside of the United States for an extended period of time, unless it’s a temporary absence, as shown by:
  • The reason for your trip;
  • How long you planned to be absent from the United States;
  • Any other circumstances of your absence; and
  • Any events that may have prolonged your absence.

• Note: Obtaining a re-entry permit from USCIS before you leave, or a returning resident visa (SB-1) from a U.S. consulate while abroad, may help show that you planned for this to be a temporary absence."

 

The OP very specifically asked if a Canadian citizen could maintain US LPR while living in Canada. The answer is no. Declaring residence in another country is considered abandoning US LPR, and that's required for accessing healthcare and other services while living in Canada. Will it immediately become an issue? Probably not. Is it worth the risk? IMO, no.

 

Also, the quote above includes "including but not limited to". Sure, there is a lot of uncertainty, as there is with most of immigration. It might never be a problem, but if OP wants to risk it, they should probably know all the issues with that approach. The search bar at the top could also provide some cases where people lost LPR in similar situations.

Edited October 22, 2020 by Mollie09

[SteveInBostonI130 3,459]

12 hours ago, ThaOne said:

The OP never mentioned anything about intent on living there permanently, but only until a situation was found in relation to family issues and job situation.

 

* they didn't mention anything about this being permanent

This:

 

20 hours ago, crockies99 said:

Hi.  I don't know if this is the right place to ask this or not.  I am a US citizen and my wife is a green card holder (permanent resident).  We already have gone through the process and are well passed that.  My question is related to my wife (green card holder) is leaning towards wanting to live in Canada now (where she's from).

Also too, is there a way she (the permanent resident green card holder) can keep her green card and choose to live in Canada and be a dual citizen?

 

 

Hi @crockies99,

 

The only practical way is for your wife to get US citizenship.  Then she will be a dual citizen and can choose to live in Canada and visit the US anytime. 

 

 

[Boiler 45,525]

Yes she needs to naturalise, now quite how long that would take is an unknown but will not be quick, seems she is eligible to file.

 

So the question is whether she will wait?

[HRQX 4,145]

3 hours ago, Mollie09 said:

The OP very specifically asked if a Canadian citizen could maintain US LPR while living in Canada. The answer is no. Declaring residence in another country is considered abandoning US LPR,

Not in the case of commuter LPR (OP hasn't further indicated if they saw the info that was shared regarding "commuter status"): https://www.uscis.gov/policy-manual/volume-11-part-b-chapter-4

However, in certain situations, an LPR may commence or continue to reside in a foreign contiguous territory and commute to the United States for employment. This administrative grant of “commuter status” is only available to LPRs living in Canada or Mexico.

 

To be eligible for commuter status, an applicant must meet the following requirements:

• Establish LPR status;

• Establish he or she lives in Canada or Mexico; and

• Establish employment in the United States within the 6 months before filing.

[Mollie09 1,543]

14 minutes ago, HRQX said:

Not in the case of commuter LPR (OP hasn't further indicated if they saw the info that was shared regarding "commuter status"): https://www.uscis.gov/policy-manual/volume-11-part-b-chapter-4

However, in certain situations, an LPR may commence or continue to reside in a foreign contiguous territory and commute to the United States for employment. This administrative grant of “commuter status” is only available to LPRs living in Canada or Mexico.

 

To be eligible for commuter status, an applicant must meet the following requirements:

• Establish LPR status;

• Establish he or she lives in Canada or Mexico; and

• Establish employment in the United States within the 6 months before filing.

 

That's if the wife wanted to live in Canada and commute to the US for employment, which doesn't sound to be the case. It sounds like she wants to live and work in Canada while maintaining PR to come and go from the US to visit the OP.

[Mike E 11,739]

14 hours ago, ThaOne said:

They didn't lose their LPR status but didn't meet the residency requirements for NATURALIZATION.

If they didn't meet the residency requirements for naturalization, despite holding a green card for 3/5 years, then it just means they kept their LPR status through luck.

 

A second hand story from my wife. When she was at the embassy interviewing for her K-1, she spoke to an retired couple was there to relinquish their green cards. It turns out they were not spending enough time in the US each year to satisfy CBP, and this couple grew tired of the complaints from CBP on each "return" to the USA.

 

Had they not relinquished, eventually CBP would have reported the situation to DHS, and a Notice to Appear would have been issued for a trial to determine if this couple could retain their green cards.

 

I'm in violent agreement though: file an N-400.

[HRQX 4,145]

23 minutes ago, Mollie09 said:

It sounds like she wants to live and work in Canada while maintaining PR to come and go from the US to visit the OP.

I'll concede that it's a valid guess. Even so, depending where in Canada she would reside, maintaining commuter LPR status (by physically commuting to work inside the US) could be an option worth considering.

Edited October 22, 2020 by HRQX

[ThaOne 101]

15 hours ago, Mike E said:

If they didn't meet the residency requirements for naturalization, despite holding a green card for 3/5 years, then it just means they kept their LPR status through luck.

 

A second hand story from my wife. When she was at the embassy interviewing for her K-1, she spoke to an retired couple was there to relinquish their green cards. It turns out they were not spending enough time in the US each year to satisfy CBP, and this couple grew tired of the complaints from CBP on each "return" to the USA.

 

Had they not relinquished, eventually CBP would have reported the situation to DHS, and a Notice to Appear would have been issued for a trial to determine if this couple could retain their green cards.

 

I'm in violent agreement though: file an N-400.

I understand what you say. But like I said, they qualify NOW to file the n400. So they should go ahead and file now. Within 6 months maybe or a little after that all this could be done and not an issue anyway.

Also as I stated from the beginning since the case may have some specifics, maybe this is one of those circumstances where the OP should talk to a lawyer who would know based on their specific situation whether to do a commute "thingy" if they are close enough to the border, or if there is something in their case that could be acceptable based all the detailed and personal info on their situation they would give the lawyer. USCIS does allow for people to be out of the country for 6 months. It's just a fact. Now based on the explanation or lack thereof this may or may not be a problem. 

But you have two people here who decided arbitrarily that it is NOT okay to be outside the country for 6 months. One called it an abuse of the system (thus a crime). The other one who came to his rescue was 150% sure of what she was saying (because she has thousands of posts) that it is not possible to be outside of the country for 6 months, only to then talk about a possibility that it MAY pose a problem. That's why from the start I said to the OP when a case isn't clear cut with an answer if possible talking to a lawyer would help. But really if someone stays outside of the US for 10 years and during that time comes back every 6 months then that would definitely be a problem.

 

In addition I have heard that residency is established at the time of filing when it comes to naturalization. So if that is correct and they file now as I specified from the beginning, before she has to go for personal reasons to Canada, it means she has already met all the conditions to become a US citizen (paid taxes, met residency...)... So if residency is determined at time of filing it means that even if she left in a month after filing, and since it isn't a crime to come back in 6 months (despite what someone says) it isn't an issue. She had to go take care of the parents, her husband is still here there still are assets here. So what is the issue?

You have people who play the police and arbitrarily decide from their desk to tell people that it's illegal but have no supporting evidence to show this and decide to affect someone's life based on what they think and then come back saying "there is a chance that there is a possibility that maybe it will not be okay, so why take the risk?". 

Which is why I said while they should file the n400 now as they qualify already, maybe talk to a lawyer on the side.

I repeat residency requirements are from what I heard established at the time of filing. They should confirm that with a lawyer who knows what he/she is doing and not just take the word of someone who thinks that because she has thousands of (quantitative) posts, she has become a lawyer.

That's all.

Cheers.

Edited October 23, 2020 by ThaOne

[Mike E 11,739]

1 hour ago, ThaOne said:

I understand what you say. But like I said, they qualify NOW to file the n400. So they should go ahead and file now.
 

yes this is what I said.  
 

1 hour ago, ThaOne said:

 

Within 6 months maybe or a little after that all this could be done and not an issue anyway.

 

It takes a year.  
 

 

1 hour ago, ThaOne said:

Also as I stated from the beginning since the case may have some specifics, maybe this is one of those circumstances where the OP should talk to a lawyer who would know

 

I’m never opposed to hiring competent legal representation 

 

 

1 hour ago, ThaOne said:

USCIS does allow for people to be out of the country for 6 months. It's just a fact.

 

Fact eh? 
https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

An officer may also review whether an applicant with multiple absences of less than 6 months each will be able to satisfy the continuous residence requirement. In some of these cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time.

 

 

1 hour ago, ThaOne said:

In addition I have heard that residency is established at the time of filing when it comes to naturalization.

 

At filing. At interview.  And at oath.  
 

 

1 hour ago, ThaOne said:

She had to go take care of the parents, her husband is still here there still are assets here. So what is the issue?

The issue is a break in continuous residency If not the physical presence requirement.  
 

Have you ever heard the parable of birthday girl whose nemesis gifts her a big (think washing machine sized)  cardboard box of horse manure?

 

The birthday girl unwraps her gift, and is over joyed because she smells a pony.  

 

She spends the rest of her party, ignoring the clown, magician, the bouncy castle, the pool, and her friends, reaching into and digging into that box because she knows there is a pony in there somewhere.

 
 

1 hour ago, ThaOne said:

[ThaOne 101]

If she files now. There wouldn't be multiple breaks but possibly just one.

If she breaks residency for acceptable reasons, she may not be eligible anymore to file afterwards, but may still retain LPR. Written in black and white on USCIS website.

Residency status for maintaining LPR status is different not the same as residency requirement to FILE n400. If n400 is filed now since all condition are met (the OP and his wife are married more than 5 years, have paid their taxes, and qualify...) none of this should be an issue if in the meantime one break of less than six months is taken. 

 

An absence of more than 6 months (more than 180 days) but less than 1 year (less than 365 days) during the period for which continuous residence is required (also called “the statutory period”) is presumed to break the continuity of such residence.^[12] This includes any absence that takes place during the statutory period before the applicant files the naturalization application and any absence between the filing of the application and the applicant’s admission to citizenship.^[13]

An applicant’s intent is not relevant in determining the location of his or her residence. The length of the period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted the continuity of his or her residence.

Edited October 23, 2020 by ThaOne