Waiting on residence status
Q. I’m waiting to hear on my I-751 Petition to Remove the Conditions of Residence. If I don’t hear before I qualify to apply for U.S. citizenship, can I nevertheless submit my application? How long until the USCIS approves my I-751?
I married my U.S. citizen wife in May 2004. The USCIS granted me conditional permanent residence in March 2006. Last February, my wife and I applied to remove the condition from my residence.
– P.I., Manhattan
A. You need not wait for the USCIS to approve your I-751 petition to apply for U.S. citizenship. As I explained in last week’s column, if you stay married to and live with the same U.S.-citizen spouse, you qualify for citizenship three years after the USCIS granted you conditional residence.
You can apply three months before that date. That’s assuming you remain married and living with your U.S. citizen spouse. The USCIS should decide your I-751 by February 2009, but that’s just a guess based on current processing times.
You became a conditional permanent resident because the USCIS granted you residence within three years of your marriage. Conditional residents have the same rights and benefits as other permanent residents. That includes counting the time in conditional residence status toward U.S. citizenship.
Suppose you apply for U.S. citizenship and the USCIS calls you for an interview before it approves your I-751 petition. USCIS examiners in New York can adjudicate pending I-751 applications at naturalization appointments. If the examiner approves the I-751, he or she can then consider a naturalization application at the same interview.
Can time go toward naturalization?
Q. Can I count my time here toward the five years I need to qualify for naturalization? The government granted me asylum five years ago. However, I applied to adjust status to permanent resident just last year.
- John, Manhattan
A. The USCIS will credit you with only one year for your time in asylee status. The agency will backdate your permanent residence one year from the date it approves your adjustment of status application.
Note that for refugees, the agency backdates the approval to the refugee’s first date of entry into the U.S. in refugee status. You may submit your naturalization application three months before you qualify to naturalize. Sometimes a permanent resident card for an asylee or refugee has a wrong approval date. If the USCIS makes a mistake on your card, don’t worry.
Apply for naturalization when you believe you qualify. If the date on your card is wrong, include an explanation.
For how long can I leave the U.S.?
Q. How long can a permanent resident be outside the U.S. without losing his status?
- W., Long Island
A. The answer is not so simple. Two issues are involved: The validity of your permanent residence card and the question of whether you have abandoned your residence in the U.S.
A permanent resident card is valid for reentry only if the holder returns from abroad in less than one year. With trips abroad of one year or longer, you would need a different document to reenter – either a reentry permit issued by the USCIS or a special immigrant visa issued by a U.S. consul abroad.
Separate from the matter of whether your card is valid for reentry is the question of whether your travel is evidence that you abandoned your residence. For periods abroad of more than six months, an immigration officer at a port-of-entry can ask for proof that you have not abandoned your residence. For trips of six months or less, to keep you out, the government would need to prove abandonment.
As a practical matter, trips abroad of six months or less are rarely a problem. For trips of more than six months, be prepared to explain what you were doing abroad. Also, keep a bank account and mailing address as proof that you are maintaining residence. For trips of more than one year, apply for a USCIS reentry permit before departing.
Green card lottery
The U.S. State Department has announced that it will accept entries for the DV-2010 green card lottery beginning at noon on October 2, and ending at noon on December 1. The State Department will accept entries online only. Entering early won’t improve your chances of winning, but don’t wait until the last few days when DOS computers sometimes get clogged. I’ll be writing more about the lottery in coming weeks.
Allan Wernick is a lawyer and chair of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition.” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y. 10001. Professor Wernick’s web site is www.allanwernick.com.
Allan Wernick’s Immigration column is reprinted from the Thursday, September 25 editions of the New York Daily News.
