Naturalization based on marriage to a USC (now on DV GC)

[abumiqdad]

Hi all.

I have a question regarding this - if i plan to naturalize using the 3 year rule, what do i need to do? Background info:

1. Wife is a natural born USC - left USA at the age of 2 and never stepped foot on US soil ever since then.
2. I got selected for DV lottery, activated the GC Nov of last year (2016).
3. My eldest child got included in the DV so he has a GC now. (DV3)
4. 2nd child (youngest) was not included and wife is petitioning for him now (I-130)
5. Currently out of the USA and plan to go back to USA this month (just me and my kid - wife still has to work in home country and taking care of the youngest)
6. Planning to get re-entry permit this month too (I-131) and return to my home country after the I-131 biometric.
7. Will make a move to the USA some time middle of next year after the petition is approved and visa in hand for the youngest.

Now my questions:
1. Let's just say i arrive on US soil again maybe July next year (July 2018), how soon can i apply for naturalization?
2. Would having Re-entry permit affects my application?
3. Also once I naturalized using 3 year rule, would my offspring , regardless where he/she is born (obviously out of the USA), be considered as a USC at birth? (i know that the offspring of parents where both parents are USC, will always be a USC IF one of them has been in the USA prior to the birth - but i just want to know that IF, just IF, USCIS considers only my citizenship (via naturalization after being LPR for 3 years), would my child automatically be considered as a USC? Or do i need to spend 5 years as a USC on US soil before that takes place?)
- SIDE INFO, prior to getting a GC, I spent 4 years in the USA on J1 visa years ago, completing my bachelors degree - not sure this period can be counted towards that 5 years being USC rule before my offspring can be considered USC at birth).

Thoughts?

[newacct]

I answered your question on another forum, but here it is again for reference:

1. To qualify for naturalization under the 3-year rule, you must have had continuous residence as a permanent resident for the last 3 years, and have been married to a US citizen for the last 3 years (you can apply 90 days before meeting the continuous residence requirement, but must have met all the other requirements at the time you apply). So if you didn't break continuous residence, you would be eligible to apply when you have been a permanent resident for 2 years and 9 months, or have been married for 3 years, whichever is later (i.e. if you married more than 3 months before you became a permanent resident, then you wait until you have been a permanent resident for 2 years and 9 months; otherwise, you wait until you have been married to the US citizen for 3 years).

However, being absent from the US for more than 6 months is presumed to break continuous residence. For an absence of between 6 months and 1 year, it is possible to overcome the presumption you broke continuous residence with strong evidence. For an absence of more than 1 year, you definitely break continuous residence (there is an exception for people working for certain American research firms abroad who file a special form, but that doesn't apply to you). They might also consider multiple absences with short breaks in between to be one long absence.

I will assume you are breaking continuous residence with your absences; the question is how long after you return are you eligible to file. There is the 4 years + 1 day / 2 years + 1 day rule, where, after you return from an absence of more than 1 year, you are considered to meet the continuous residence requirement under the 5-year rule 4 years and 1 day after your return, and you are considered to meet the requirement under the 3-year rule 2 years and 1 day after you return. It is unclear whether you are breaking continuous residence with an absence of more than 1 year or between 6 months and 1 year, and there is dispute about whether the 4 years + 1 day / 2 years + 1 day rule applies when you broke continuous residence with an absence of between 6 months and 1 year. So it's kind of hard to figure out when you will be able to apply.

2. no

3. I am assuming these are your children but not your wife's children (i.e. they are your wife's stepchildren). On the day you become a citizen (the day you take the oath), any of your children who are permanent residents under 18 and living with you in the US at that time automatically and involuntarily become US citizens under INA 320, without needing any application or action, and neither you nor your children have a choice in the matter. They will not become USC "at birth" -- they will become USC as of that day that all the conditions are simultaneously met. If this doesn't happen before they turn 18, then your naturalization has nothing to do with them, and they, like any other permanent residents, can file an application for naturalization by themselves after 18, if they choose, when they meet the requirements for naturalization under the 5-year rule.

4. joint tax returns, joint bank accounts, leases

[inadmissible]

Wife is a natural born USC - left USA at the age of 2 and never stepped foot on US soil ever since then.
Also once I naturalized using 3 year rule, would my offspring , regardless where he/she is born (obviously out of the USA), be considered as a USC at birth? (i know that the offspring of parents where both parents are USC, will always be a USC IF one of them has been in the USA prior to the birth - but i just want to know that IF, just IF, USCIS considers only my citizenship (via naturalization after being LPR for 3 years), would my child automatically be considered as a USC? Or do i need to spend 5 years as a USC on US soil before that takes place?)

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter3.html

Assuming one parent has ever resided in the United States, a child of two US citizens born abroad will acquire US citizenship at birth. Your spouse has previously been resident in the United States, so any of your children together will be born US citizens

Once you naturalize, your physical presence in the United States is only relevant for the children you may have with a partner who is not a US citizen

[abumiqdad]

https://www.uscis.gov/policymanual/H...-Chapter3.html

Assuming one parent has ever resided in the United States, a child of two US citizens born abroad will acquire US citizenship at birth. Your spouse has previously been resident in the United States, so any of your children together will be born US citizens

Once you naturalize, your physical presence in the United States is only relevant for the children you may have with a partner who is not a US citizen

Thank you inadmissible for this answer - not that i have any plans for this, but just curious of the last bit in your answer - based on my situation, would a naturalized citizen based on 3-year rule need to spend 5 years on US soil before new-born offspring of that citizen (after the naturalization AND NOT FROM a marriage to another USC), be considered citizen at birth?

If so, would the period being in US soil be counted for the citizen

1. AFTER Receives LPR status?
2. AFTER Naturalized?
3. or just ANY PERIOD within the naturalized citizen life?

Just wanting to be sure - as right now my wife cannot inherit her citizenship to our child on her own - so if i naturalize, i would prefer that EITHER of us will fulfill the requirement to pass down our citizenship to our child

[newacct]

Thank you inadmissible for this answer - not that i have any plans for this, but just curious of the last bit in your answer - based on my situation, would a naturalized citizen based on 3-year rule need to spend 5 years on US soil before new-born offspring of that citizen (after the naturalization AND NOT FROM a marriage to another USC), be considered citizen at birth?

If so, would the period being in US soil be counted for the citizen

1. AFTER Receives LPR status?
2. AFTER Naturalized?
3. or just ANY PERIOD within the naturalized citizen life?

Just wanting to be sure - as right now my wife cannot inherit her citizenship to our child on her own - so if i naturalize, i would prefer that EITHER of us will fulfill the requirement to pass down our citizenship to our child

For a child born abroad to you after naturalization and to a non-US national parent, it is 5 years of physical presence in the US in any status (including citizen, permanent resident, nonimmigrant, or illegal immigrant).

However, a child born abroad after your naturalization to you and your wife would be under a different rule, since you guys would be both US citizens -- it just requires that either of you had a "residence" in the US at some point in your life (no particular period of time required).

[abumiqdad]

I answered your question on another forum, but here it is again for reference:

1. To qualify for naturalization under the 3-year rule, you must have had continuous residence as a permanent resident for the last 3 years, and have been married to a US citizen for the last 3 years (you can apply 90 days before meeting the continuous residence requirement, but must have met all the other requirements at the time you apply). So if you didn't break continuous residence, you would be eligible to apply when you have been a permanent resident for 2 years and 9 months, or have been married for 3 years, whichever is later (i.e. if you married more than 3 months before you became a permanent resident, then you wait until you have been a permanent resident for 2 years and 9 months; otherwise, you wait until you have been married to the US citizen for 3 years).

However, being absent from the US for more than 6 months is presumed to break continuous residence. For an absence of between 6 months and 1 year, it is possible to overcome the presumption you broke continuous residence with strong evidence. For an absence of more than 1 year, you definitely break continuous residence (there is an exception for people working for certain American research firms abroad who file a special form, but that doesn't apply to you). They might also consider multiple absences with short breaks in between to be one long absence.

I will assume you are breaking continuous residence with your absences; the question is how long after you return are you eligible to file. There is the 4 years + 1 day / 2 years + 1 day rule, where, after you return from an absence of more than 1 year, you are considered to meet the continuous residence requirement under the 5-year rule 4 years and 1 day after your return, and you are considered to meet the requirement under the 3-year rule 2 years and 1 day after you return. It is unclear whether you are breaking continuous residence with an absence of more than 1 year or between 6 months and 1 year, and there is dispute about whether the 4 years + 1 day / 2 years + 1 day rule applies when you broke continuous residence with an absence of between 6 months and 1 year. So it's kind of hard to figure out when you will be able to apply.

2. no

3. I am assuming these are your children but not your wife's children (i.e. they are your wife's stepchildren). On the day you become a citizen (the day you take the oath), any of your children who are permanent residents under 18 and living with you in the US at that time automatically and involuntarily become US citizens under INA 320, without needing any application or action, and neither you nor your children have a choice in the matter. They will not become USC "at birth" -- they will become USC as of that day that all the conditions are simultaneously met. If this doesn't happen before they turn 18, then your naturalization has nothing to do with them, and they, like any other permanent residents, can file an application for naturalization by themselves after 18, if they choose, when they meet the requirements for naturalization under the 5-year rule.

4. joint tax returns, joint bank accounts, leases

1. so the counting begins AFTER I RETURN to US soil (meaning I cannot start the period counting to start when i am absent from the USA) ? i will be back on US soil this Saturday and will stay there until - hopefully i receive my re-entry permit. Then will make my migration for the whole family middle of next year. July 2018 is the targeted month.

Based on my understanding of your explanation - i can only start counting from July 2018, so the earliest i can apply for naturalization is 2 years 9 months after that (April 2021)?

4. i guess maybe it is not a custom thing from the country i am from, but my wife and i do not have joint accounts here - but we are being transparent with each other- we both have access to each other's accounts and finance details. Not an issue, i will open a joint account soon when she can come to the USA next year.

Would filing tax "MARRIED BUT FILING SEPARATELY " be a cause of concern? (we filed using that option as it looks easier for the calculation since we are using the overseas income tax exemption for both of us).

[abumiqdad]

For a child born abroad to you after naturalization and to a non-US national parent, it is 5 years of physical presence in the US in any status (including citizen, permanent resident, nonimmigrant, or illegal immigrant).

However, a child born abroad after your naturalization to you and your wife would be under a different rule, since you guys would be both US citizens -- it just requires that either of you had a "residence" in the US at some point in your life (no particular period of time required).

Cool. So once I naturalized, the period of me studying in the states years can be included and counted then. Not that it matters since our offspring then will be USC at birth on a different clause of the INA.

[abumiqdad]

For a child born abroad to you after naturalization and to a non-US national parent, it is 5 years of physical presence in the US in any status (including citizen, permanent resident, nonimmigrant, or illegal immigrant).

However, a child born abroad after your naturalization to you and your wife would be under a different rule, since you guys would be both US citizens -- it just requires that either of you had a "residence" in the US at some point in your life (no particular period of time required).

@newacct : do you have some legal references on where this info is taken from?

"it is 5 years of physical presence in the US in any status (including citizen, permanent resident, nonimmigrant, or illegal immigrant)."

i would like to read more - especially on the ILLEGAL IMMIGRANT status being counted as part of the 5 years requirement. Or is this a Supreme Court ruling?

[newacct]

@newacct : do you have some legal references on where this info is taken from?

"it is 5 years of physical presence in the US in any status (including citizen, permanent resident, nonimmigrant, or illegal immigrant)."

i would like to read more - especially on the ILLEGAL IMMIGRANT status being counted as part of the 5 years requirement. Or is this a Supreme Court ruling?

It's the interpretation from the Department of State's Foreign Affairs Manual, section 7 FAM 1133.3-2(a)(2):
"Naturalized citizens may count any time they spent in the United States or its outlying possessions both before and after being naturalized, regardless of their status. Even citizens who, prior to lawful entry and naturalization, had spent time in the United States illegally can include that time."

In practice, this is unlikely to matter much as most people who have naturalized have probably spent close to 5 years as a permanent resident before naturalizing. (The law only requires half of that as physical presence, 2.5 years; and spouses who naturalize under the 3-year rule only need to have 1.5 years of physical presence, so it's technically possible for it to be under 5 years at the time of the birth of the child, but I think most people who naturalize don't have that much time physically outside the US, and even if it's under at the time of naturalization, the child would still have to be born very soon after naturalization for this to be a problem).

[abumiqdad]

It's the interpretation from the Department of State's Foreign Affairs Manual, section 7 FAM 1133.3-2(a)(2):
"Naturalized citizens may count any time they spent in the United States or its outlying possessions both before and after being naturalized, regardless of their status. Even citizens who, prior to lawful entry and naturalization, had spent time in the United States illegally can include that time."

In practice, this is unlikely to matter much as most people who have naturalized have probably spent close to 5 years as a permanent resident before naturalizing. (The law only requires half of that as physical presence, 2.5 years; and spouses who naturalize under the 3-year rule only need to have 1.5 years of physical presence, so it's technically possible for it to be under 5 years at the time of the birth of the child, but I think most people who naturalize don't have that much time physically outside the US, and even if it's under at the time of naturalization, the child would still have to be born very soon after naturalization for this to be a problem).

Alright, thank you for the answer @newacct