Q & A April 25, 2004

Q & A 1.

Dear Mr. Lee:

After becoming a U.S. citizen through marriage, my daughter petitioned for my husband and me, who resided in Taipei. We obtained the Green Cards in 1995, and came to stay in the U.S. in that summer. We only stayed there for a month before returning, as my husband still had a job in Taipei. At the time, we had our re-entry permits done through an attorney. In summer of 1997, we also stayed in the U.S. for a month or so, and renewed our re-entry permits. My husband, unfortunately, passed away in fall of 1997, and I decided to stay in Taipei since then for the purpose of medical treatment. When I applied for my re-entry permit renewal the third time in 1998, the attorney warned that the immigration office only accepted the re-entry permit renewal for no more than three times, and that it would be better off coming to the U.S. every half a year. I, therefore, came and stayed with my daughter who resided in California every half a year since 1999, and each time I stayed for one to three months. As a total, I have, until now, stayed in the U.S. for about one year and four months.

My ten-year Green Card will be expired on 7/28/2005. According to my attorney, I should have it extended half a year prior to the expiration date. I am thinking to reside in the U.S. permanently and apply for naturalization.

Questions:

1. According to my attorney, during those years that I had my re-entry permit, the days I stayed in the U.S. weren’t included for immigration purpose. Is that true?

2. If it is the truth, does it mean I have to stay here in the U.S. for at least half a year more, or even longer, before I am able to apply for naturalization?

3. A friend told me that I can file the naturalization application after residing here for three years and nine months, since the case will be pending for approval for half a year or even longer, which will be included also. Is it correct?

Hsia
California

Dear reader:

1. The rules of naturalization are that periods spent outside the United States for six months or more on one trip presumptively terminate residence for naturalization purposes. Further, that absences of one year or more even with a reentry permit conclusively terminate residence for naturalization purposes in most situations. An exception is that absences of one year or more do not terminate residence where individuals are eligible for and have filed N-470 applications to preserve residence for naturalization purposes. That is not the case here. Residence is also only counted within the qualifying period, which in this case is five years. Therefore you can only count back to 1998 when you count your periods of residence as well as physical presence in the United States.

2. From the date of filing, you can only count back five years to determine whether you have the necessary physical presence in the U.S. (one half of the qualifying period or 30 months) for basic eligibility for naturalization. In the 5 year countback, you should determine whether you have the necessary two and a half years of physical presence. Even where the two and one half years are reached, I do note that naturalization examiners may question whether any of your absences in the past of six months or more broke the period of residence for naturalization purposes.

3. Naturalization applicants are only allowed to file N-400 applications 90 days in advance of the date for eligibility so long as all the other requirements are met.

Copyright © 2003 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.