[dlnielsen]

Hello,

My wife received her green card in November 2003. We had been married over two years and had a child when we applied, so she received a permanent green card from the very beginning. I had been working overseas since 2000, and we were preparing to move back permanently to the US. We were in the US from the end of November until the end of December. We bought a condo in San Diego during that visit, we closed escrow in January of 2004. As I mentioned, we left the US in December of 2003 to close up our affairs overseas. We returned at the end of March 2004 for about 2 weeks, and left again in April. In early August, we returned to the US permanently. The longest period that we were absent from the US was 4 months. We have not left the US since we returned in August 2004.

My question is about Naturalization. According to the BCIS website, my wife is eligible to apply for naturalization after being a lawful permanent resident for 3 years (physical presence), and she can apply 90 days before becoming eligible. The site outlines that the 3 years physical presence can be broken by absence of 6 months or more. My question is, does our two absences, (one 3 months and one 4 months) break physical presence? I contend that since we were in the US in between, it does not break the physical presence. Unfortunately, I am not an expert. If I am correct, my wife is eligible to apply for naturalization now. Could someone shed any light on this situation? Any help would be greatly appreciated.

[GaryArt]

You are correct. Your wife is eligible to apply 90 days prior to the three years anniversary of the grant of permanent residence.

The requirement is for three years of permanent residence after lawful admission, which period would commence, according to the dates you provided, in November, 2003, meaning she could apply three months prior to the three years anniversary date, or 33 months after lawful admission, August, 2006 - last month.

The three years' lawful permanent residence requirement can be tolled, or broken, by voluntary absence of six months or more.

Don't confuse the requirement for three years "continuous residence", with the six months "voluntary absence" restriction - The controlling statute clearly refers to voluntary absences of periods of six months or longer, not to a cumulative absence of six months or longer.

The issue is that longer absences - without intervening return to the U.S. could either (a) indicate lack of intent to reside here permanently, or (b) allow the required "attachment" (i.e. affection) for the U.S. to lessen.

In any event, the three years of continuous residence can only be broken, in the context, by a voluntary absence of six months or longer - The total number of days or months of absence duriong the three years is irrelevant, so long as the applicant's intention to permanently reside in the U.S. after citizenship is acquired never fails.

For example, an alien lawfully admitted in November, 2003, could return to his or her nation of origin every two weeks, and stay for a week at a time (so long as the reason for going back did not indicate that the applicant did not intend to reside here permanantly), for the entire three years. That would equate to absences totalling almost nine months during the three years, but it would not matter. The applicant was never had a particular absence long enough to toll the three years period. The total number of days absent cannot be aggregated.

You can learn more about this by reviewing CIS Interpretation 316.1, which is available on the CIS website at www.CIS.gov.

But more importantly, there is a statutory provision expressly exempting the spouse of a U.S. citizen whose employment results in his or her being permanently assigned overseas. You can read Section 319(b) of the Immigration Act (codified as 8 U.S.C ss.1430(b), or, read an official summary in simpler language at CIS [Interpretation 319.2.

Put simply, probably neither the three years "continuous residence" requirement, nor the six months "voluntary absence" restriction ever applied to your wife, because she lived with you, a U.S. citizen, whose employment resulted in his being permanently assigned overseas.

Hope this helps. Good luck.