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I had a question regarding my wife's Citizenship

Customer Question
Hi. I had...

Hi. I had a question regarding my wife's Citizenship eligibility

Lawyer's Assistant: What is your official status? Do you have any pending applications or petitions with USCIS?

I am a US Citizen. My wife (applicant) is a perm resident. She does not have an application submitted

Lawyer's Assistant: Have you talked to a lawyer yet?

Not yet

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Questions are to do w/ travel and continuous residence

Submitted: 8 months ago.Category: Immigration Law
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Answered in 4 minutes by:
9/7/2017
Immigration Lawyer: KLAW, Lawyer replied 8 months ago
KLAW
KLAW, Lawyer
Category: Immigration Law
Satisfied Customers: 2,197
Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
Verified
Good afternoon
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Immigration Lawyer: KLAW, Lawyer replied 8 months ago
Please give me more details about your questions?
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Customer reply replied 8 months ago
sure
Immigration Lawyer: KLAW, Lawyer replied 8 months ago

Is she applying to adjust status based upon your marriage? On what type of visa did she arrive?

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Customer reply replied 8 months ago
My wife (applicant) and myself (US Citizen/ veteran) have been married for 10 years and have three children (US). She's been a perm resident for 9 years. In 2016 we left for South Africa on an extended vacation to renew her passport and visit family. South African Home Affairs took approx 10 months to resolve her renewal. THen we went from South Africa to the UK to visit her mother and brother for xmas. In total that trip was apprx 12 months. Then we returned twice for a total period of 5 months to visit family. Is she still eligible?
Customer reply replied 8 months ago
eligible for citizenship?
Immigration Lawyer: KLAW, Lawyer replied 8 months ago

Ok

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Immigration Lawyer: KLAW, Lawyer replied 8 months ago

Hello and welcome to Just Answer. No attorney-client relationship or privilege is formed by speaking to an expert on this site, the answers are for general information. By continuing, you confirm that you understand and agree to these terms.

A little background.

The N-400 can be filed if she has held the green card for the past 5 years and

She has not left the country for longer than 6 months in the past 5 years.

As per INA 101 (a) (13) (C) – An alien lawfully admitted for permanent residence in the U.S shall not be regarded as seeking admission into the U.S. for the purposes of immigration laws unless the alien:

1) Has abandoned or relinquished that status;

or

2) Has been absent from the U.S. for a continuous period in excess of 180 days.

While under normal circumstances the USCIS/DHS tends not to claim you have abandoned resident status unless you have spent over 180 continuous days outside the U.S., they are still permitted to find so in certain circumstances and there are cases were they have done so. Circumstances that have instigated such finding:

1) Extended or frequent absences from the U.S;
2) Disposition of property or business affiliation in the U.S;
3) Family, property or business ties abroad;
4) Conduct while outside the U.S such as employment by foreign employer; voting in foreign election, running for political office in foreign country; or
5) Failure to file U.S income tax returns.
The Code of Federal Rules is silent in regards ***** ***** less than 6 months duration, even when there are frequent trips, but please bear in mind that as per INA 101 (a) (13) (C) you can be deemed to have abandoned residence even for trips less than 6 months, and frequent trips can be questioned.

That said, the N-400 application for naturalization form contains a question about the number of trips you have made outside the U.S. showing the relevance of frequent trips.
The regulations 8 CFR 316.5 (c)(1)(i) state that where the absence is more than 6 months but less than 12, residence may be interrupted even if: 1) the applicant did not apply for or otherwise request non-resident classification for tax purposes; 2)Did not document an abandonment of lawful permanent resident status and is still considered a permanent resident under immigration laws.
The regulations 8 CFR 316.5 (c)(1)(i) state that a finding that residence has not been interrupted will be supported if:
1) If the applicant did not terminate his or her employment in the U.S;
2) The applicant’s immediate family remained in the U.S;
3) The applicant retained full access to his or her U.S abode; or
4) The applicant did not obtain employment while abroad.

The code does state that supporting documentation is not limited to these specific categories of evidence.
That said, in practice, while there may be circumstances where an individual has spent considerable time overseas, she has not in fact abandoned or interrupted residence in the U.S. Examples are: 1) family member traveling abroad to take care of a relative; 2) renewing passport while overseas and a delay in obtaining the renewal.

Some applications are sometimes denied because of a stay longer than 6 months, unless you show why there was a need to be out of the country for an extended period of time. .

.

So if she can demonstrate the delay in processing the passport renewal the N-400 will most likely be approved.

However, with the USCIS nothing is a sure thing and many N-400’s are approved with the same amount of travel and overseas stay such as your wife’s. However, keep in mind that there is always chance they will deny the application and inform her to wait until she has not left for any trip longer than 6 months.

I hope this helps.

It was a pleasure assisting you today, and I would appreciate if you would rate my service, so I will receive credit and payment for my work. After you rate the question you can ask follow up questions, and you will not be charged any additional money for the follow-up questions.

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