ChrissyD

Hi
My daughter was living with me and studying in the US for High School and University (* years) but is now studying abroad (Masters). As a Green Card holder, she wants to apply for Citizenship as soon as possible to apply for jobs. However, she realised that last Christmas she stayed in the UK so was away from her home in VA for 8 months; and is panicking that she will have to start her 5 year residency again (apparently that's what it states)

I looked on the USCIS website and found there can be exemptions for having more than a 6 month absence:-

"An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence:

•The applicant did not terminate his or her employment in the United States or obtain employment while abroad. - (She was studying on her Masters, not working)
•The applicant’s immediate family remained in the United States. - (Yes, we all live & work here)
•The applicant retained full access to his or her United States abode. - (Yes, she has her own house which she bought 4 years ago and which has been used as our family home)

I am trying to arrange to see an Immigration lawyer about this for advice but I feel that we don't need them to actually do the N-400 application, which would be costly and i think, in the circumstances, unnecessary. My initlal thoughts are that if USCIS did say there's a problem with her submission, then we can hire an attorney but I have read a post here, where an attorney was saying that it was harder and more costly for an attorney to sort out problems where no attorney (or worse, a bad one) had previously been used, so I am unsure about this.

Any thoughts, is it really more complicated than my reading of the USCIS guidelines seems to suggest?

Thank you

scrubbedexpat099

I think you are confusing resident to maintain your GC with resident to be able to naturalise:

https://www.uscis.gov/us-citizenship...naturalization

civilservant

This. She will need to add the time out of the US to the 5 year rule before applying for USC to be safe IMO.

ChrissyD

Thank you,
Do you mean the fact that she was allowed in after 8 months absence only means her GC was still ok but that it isn't any indication that they won't consider it when she applies for naturalisation? if so, then that's a good point!

ChrissyD

Thank you for replying

If you mean she has to have been in the USA for longer than the last 5 years - for 5 years PLUS the time she's been away, then she has been because she was at High School and University here & will have been here over 9 years when she applies - she is waiting till she has been doing her internship in the USA for 3 months, before applying.

My question is about how important the 6 months rule is likely to be & whether we 'need' an attorney - I don't think we do.

Rete

She has to have had her green card for 5 years in order to be eligible to petition for naturalization. That is what he means. You might want to d/l the large naturalization guidelines and instruction manual or order it delivered to you to read. I believe for 5 year candidates she has to be inside of the US at least 36 months out of those 5 years (60 months) with no one stay of a year or more outside of the US. Then the clock is reset for naturalization. I'm unsure of all of that which is why I am telling you (and she is an adult so she should be doing this not you as it is your life and her green card).

She can lose residency being out of the country for one day, never mind this 6 month rule you are talking about. Don't confuse naturalization criteria with residency criteria. They are two separate things. Your daughter might well want to have a one time consultation with an immigration attorney whenever she decides to return to the US and make it her permanent place of residency.

Noorah101

Everything you need to know is in the USCIS Guide to Naturalization, found at www.uscis.gov. There is a table in there that you can refer to, to see when she will qualify, based on her time in and out of the USA.

Rene

Rete

Something just came to mind. If your daughter has had her green card for over five years and she got it based on your green card (don't recall how you came into the US), did you naturalize? And if yes, did you do so before her 18th birthday? Again if so, then she is already a US Citizen. She would have become one when you did if she was 18 or younger.

"Under current law, children under 18 automatically acquire U.S. citizenship if three requirements are met. ... At least one parent must be a U.S. citizen by birth or naturalization. The child must be residing in the United States in the legal and physical custody of a USC parent"

ChrissyD

Hi Pete
Thank you for that thought, I saw that info when looking into the 6 mon the rule and felt annoyed with myself because I could have become a citizen before she was 18!

If I had realised that I would have done so but, even though I could have applied 6 years ago, I never got round to filling in the N-400 (am doing it now)
I would advise anyone else coming here with children, to do it as soon as they could - alas that wisdom is too late for us.

Thanks
Chrissy

ChrissyD

Hi Pete

Thank you so much for explaining that, I think you've basically said what I picked up from reading on the USCIS website but I am confused about your point "She can lose residency being out of the country for one day" that's not how I have read the guidelines which seem to me to be saying that although she has had more than 6 months away she is covered by the all 3 criteria for them to make an exception to it for her but nobody seems to be focusing on that point, so I have made an appointment for a consultation. I will let you all know what comes of it so this matter can be clarified, I think it is probably a common occurrence.

Thanks
Chrissy

Rete

Chrissy ... it is Rete not Pete ... last time I looked there is no bits and bobs hanging down there

ChrissyD

Thanks Noorah, yes I looked at that site and saw the table, I also found there are possible exemptions to the '6 month rule' shown in that table, which is what I posted in my original post - it seems maybe that nobody is familiar with these exemptions? so I will definitely post here what I am told at the consultation I have now scheduled. Seems this may shed light on an area not often covered although I am sure it must happen fairly frequently with people applying for citizenship; I like to believe that USCIS are able to use common sense when applying these rules.
Thank you
Chrissy

ChrissyD

OMGosh! I am so sorry Rete, my eyesight isn't the best and I have a brother called Pete so I read it as Pete.

I apologise

Chrissy

Rete

NP, Chrissy. I do have a deep voice because of a lifetime of smoking so often thought of as male on the phone.

As for losing your residency being out of the country one day, yes, it is not in the guidelines for naturalization but it is a fact of being a resident that maintaining ties to the US or rather not maintaining ties to the US can lead to the loss of your residency. The agent at the POE can place a returning resident in the position where they need to appear before an immigration judge where the judge will decide if the resident has maintained residency or not.

Also a crime which many view as inconsequential such as shoplifting can strip you of your green card.

Your daughter must be around 21-24 years of age. Had she filed the I-131 before she left to attend school outside of the US.

ChrissyD

Oh Gosh! no, she didn't file anything, we thought (and it now seems from your reply that this was wrong) that she didn't need to do anything as she was only going to study abroad and, incidentally the UK are counting her as an overseas student so she is paying much higher fees than 'home' students.

Cannot believe we were so blasé about this because we have been out of the country on holidays so often and thought we were fine so long as it was temporary and less than 6 months. My eldest daughter, who also has been qualified to apply for several years but not gotten round to it, says she will apply next year after she marries her US fiancé.

I will look into the !-131 form. I have scheduled an appointment to see an immigration law firm next week & it's good to be alerted to all of this beforehand, wish we had all been quicker to get this done but we have all been so busy and I guess felt 'comfortable' here at home, going out of the country without any hint that there might be a problem coming back home; my husband is a US born citizen.

Thank you so much.


Chrissy

I definitely need the