Time away from USA to keep citizenship process.

[FamousJerry 47]

My wife is a 10 year green card holder, she got her card on 11/12/20 according to the USCIS website she can apply in August. We are having our second child in December and we want to have our baby in Thailand with a due date aprox 12/22/22 . After we would like to wait till the baby is at least 3-4 months old. We would return no later than March 5th 2023. That is aprox 10 month out of the country. She was previously out of the country 6 months last year, for a total of 14 months out of usa in that 3 year window. I see online it says 18 month of USA residency and she would meet that. My main questions are can she stay out of USA for 10 months and return with no issues? and will this affect her 3 years (18 month) residency requirements. Sorry for being so long just wanted to try to give as much info as i can.

 

Thank you as always to everyone . This site was great help when we were going thought the K1 process.

[Mike E 11,745]

Each absence from the USA of 181 consecutive  days or more, creates an assumption the LPR broke continuous residency for the purposes of naturalization.
 

It is likely these one of these  absences will result  in her N-400 being denied.  
 

My advice is apply 3 years after she returns to the USA less 180 days.  So March 5, 2023 + 3 year - 180 days = March 5, 2026 - 180 days = September 4, 2025

 

And don’t forget that she has to reside in the same state or USCIS district for 3 consecutive months before she applies.  
 

Before leaving the USA for 181 days or more, she should file I-131.  

Edited April 19, 2022 by Mike E

[Family 4,259]

24 minutes ago, FamousJerry said:

with a due date aprox 12/22/22 .

Congratulations! You will be busy filing CRBA https://th.usembassy.gov/u-s-citizen-services/child-family-matters/

Get your records before you leave and enjoy the adventure. If you decide to file soon after she returns, do a Physical Count of her days in the US and outside ( don’t rely on calendar mo/yr or rounded figures), have lots of evidence that house/accounts/obligations still continued in the US ( and 10 mo absence was temp ) OR wait it out again. 

[Dashinka 24,994]

I am a little confused, 6 months outside last year and 10 months this time does not equal 14 months.  As to the question of returning to the US as an LPR after being gone for 10 months on this trip you should be fine.  Many recommend getting a re-entry permit if an LPR plans to stay outside the US for 181 days up to 365 days, but the re-entry permit is really only required if an LPR plans to remain outside the US for more than 365 days.

 

As to the question regarding filing for N400, I would agree with @Mike E on their recommendation.

 

Good Luck!

 

Here is some useful links and information regarding the N400 continuous residency.

 

Extended absences outside of the U.S. may disrupt an applicant’s continuous residence.

• Absences of more than six months but less than one year may disrupt an applicant’s continuous residence unless the applicant can prove otherwise, (see legal basis, see policy manual)
• Absences in excess of one year (PDF, 667.32 KB) or more may disrupt an applicant’s continuous residence, (see legal basis, see policy manual)

https://www.uscis.gov/citizenship/continuous-residence-and-physical-presence-requirements-for-naturalization

 

1. Absence of More than 6 Months (but Less than 1 Year)

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.

However, an applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence:^[14]

• The applicant did not terminate his or her employment in the United States or obtain employment while abroad;

• The applicant’s immediate family members remained in the United States; and

• The applicant retained full access to or continued to own or lease a home in the United States.

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

[BioNat 25]

Dashinka already shared this link, so I reiterate, read that part of the manual:

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

And this other link goes straight to the law/regulation:

https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-316/section-316.5

 

"The requirements of “continuous residence” and “physical presence” are interrelated but are different requirements."

- continuous residence: 3 years for marriage based

- physical presence: minimum of 18 months for marriage based

 

Breaks in Continuous Residence / Disruption of continuity of residence

• The applicant is absent from the United States for more than 6 months but less than 1 year; or
• The applicant is absent from the United States for 1 year or more.

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. An LPR’s lengthy or frequent absences from the U.S. can also result in a denial of naturalization due to abandonment of permanent residence.

 

      8 CFR 316.5(c)(1)(i)  - For continuous periods of between six (6) months and one (1) year:

(...) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. (...) The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: 

(A) The applicant did not terminate his or her employment in the United States; 

(B) The applicant's immediate family remained in the United States; 

(C) The applicant retained full access to his or her United States abode; or 

(D) The applicant did not obtain employment while abroad.

 

About the 3 months of residence within the Local Office's jurisdiction: 

Residence during absences of less than one year

8 CFR 316.5(b)(5)(i) - An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad.

 

 

Bottomline

• physical presence: 6 months + 10 months < 18 months; so she would satisfy the minimal requirement
• continuous residence: you will have to gather sufficient (I'd go with abundant actually) proof that she did not disrupt the continuity of her residence in the US
  • note1: this goes for both the previous and the future trip
  • note2: make sure all of her taxes are up to date and saying that she was a resident; if any of those she put as non-resident, that is proof of break of the continuous residence: 8 CFR 316.5(c)(2) "An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States."

Possible Consequences

Denial.

However, that is not a permanent denial. Any disruption in the continuous residence basically just restarts the clock: she would have to start counting from when she came back from the last disruption.

If you think you cannot gather enough proof to say that she indeed did not disrupt her continuous residence in those trips, treat the situation as they say for 8 CFR 316.5(c)(1)(ii):

"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."

So, if it is the case, she might have to wait for two years and one day after coming back to be able to apply for the N400.

 

[Wildstar 2]

On 4/19/2022 at 12:42 PM, FamousJerry said:

My wife is a 10 year green card holder, she got her card on 11/12/20 according to the USCIS website she can apply in August. We are having our second child in December and we want to have our baby in Thailand with a due date aprox 12/22/22 . After we would like to wait till the baby is at least 3-4 months old. We would return no later than March 5th 2023. That is aprox 10 month out of the country. She was previously out of the country 6 months last year, for a total of 14 months out of usa in that 3 year window. I see online it says 18 month of USA residency and she would meet that. My main questions are can she stay out of USA for 10 months and return with no issues? and will this affect her 3 years (18 month) residency requirements. Sorry for being so long just wanted to try to give as much info as i can.

 

Thank you as always to everyone . This site was great help when we were going thought the K1 process.

I am in a very similar situation. I am a U.S.-born citizen, my wife is Thai and has a 10 year green card through February 2025. We have been living together in the U.S. since 2011. She really wants to apply for citizenship within a year, however:

1) She out of the U.S. for either 179 or 180 days (depending if a partial day would be counted) in 2019-2020 due to the need to take care of her very sick parents in Thailand, who both passed away during this period.

2) We are having a second child late this year, and thinking about doing so in Thailand. Due to some complicated family issues (land ownership dispute requiring lengthy legal proceedings), we expect that we would probably need to remain in Thailand for 6-9 months (but definitely less than a year). 

 

I understand, as posted above, that technically being out of the country more than 6 months would reset the clock on citizenship.  However, I also see it says that it is possible to avoid this reset by presenting "documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence."

 

My question is what kinds of/amount of documentation would be sufficient to successfully establish that the continuity of residence was not disrupted? Looking at the short list of recommended evidence:

 

(A) The applicant did not terminate his or her employment in the United States; (Can't do this, as my wife hasn't worked in several years)

(B) The applicant's immediate family remained in the United States; (Probably can't do this, as my other child and I would go with her to Thailand. (although I might return to U.S. alone in less than 6 months))

(C) The applicant retained full access to his or her United States abode; or (We can do this.  Her name is on the mortgage.)

(D) The applicant did not obtain employment while abroad. (She definitely won't work in Thailand, but how does one prove a negative?)

 

Her name has also been on our joint tax returns every year since 2012 if that helps. And she's on my health and car insurance policies in the U.S.  Not sure what else we could provide as evidence.

 

If anyone has any thoughts about this it would be greatly appreciated.  Thanks!