Legal Question in Immigration Law in Virginia

I received my green card end of 2012 but left the US for 9 months. Came back and left again for 9 months and stayed until now. However, when I came the first time, I bought a house and car and my family stayed in US while I went back home to finish some business.

The question is: Should I file for naturalization when I complete 5 years from the first time I came to the US, or should I wait until I complete 5 years from the time I settled? Do I have any chance to be naturalized now since buying a house and a car proves my intentions to stay in US permanently?

Asked on 8/15/17, 4:56 am

1 Answer from Attorneys

Jonathon Moseley Jonathon A. Moseley

I have had almost this exact situation before.

First, when you say " Came back and left again for 9 months and stayed until now" I assume you mean that you returned to the USA after the second 9 months and stayed IN THE UNITED STATES after that until now.

Second, you have to be physically present in the United States for 5 years after you enter on a green card to apply for citizenship (naturalization).

Third, however, each year of the 5 years does NOT mean you have to be in the United States for 365 days of the year.

Normally people typically travel for work or business and if you are out of the country for parts of a year, the year still counts as one full year towards your 5 years.

Presumptively, if you are out of the country for less than half the year, the year counts as a full year even though you were out of the country for a part of the year.

Fourth, if you were absent for most of a year THAT YEAR does NOT COUNT AT ALL.

In your case, you were absent from the USA (if I understand) for 9 months starting from the END of 2012.

It is not clear how long you were back in the United States before you left again. It sounds like you almost immediately turned around and went back to your home country again.

So it sounds as if the first two years don't count at all because in both of your first 2 years you were out of the United States during each of those first 2 years more than half of the year.

Fifth, however, there is a way for an exception.

You can ask the DHS USCIS (formerly INS) for a waiver.

In the case I had before, a woman moved to the USA, then almost immediately her father died and she had to return for his funeral and to handle his estate for several months. Then after a while her grandmother died and again she had to go back for the funeral.

If you can make a convincing case that going back home was necessary and RELATED to your move to the United States, the DHS might grant you a waiver on your explanation.

Here is the question: Does the absence from the United States back in the home country indicate a lack of the intent to permanently move to the United States? If one is cleaning up affairs in the home country as part of the move to permanently live in the United States, or an unexpected family emergency like a death in the family, the DHS may grant a waiver. But if absence from the United States looks like you are more attached to your old home country than to the United States, then a waiver will be denied and that time cannot count towards the 5 years needed for citizenship.

But unless you are granted an exception, you do not count for the 5 years any year in which you spent more than half of the year out of the country.

Read more
Answered on 8/21/17, 4:07 pm

Related Questions & Answers

More Immigration Law questions and answers in Virginia