Hi tikdam,
It's always a good idea to get a second opinion in such important
matters. An applicant must have been continuously present in the U.S.
for at least one-half of the required time (one-half of 5 years for an
individual). The only exceptions to this rule are employees under
contract with the government of the United States. In other words,
unless your friend is working for the government, he will need to
reside in the U.S. for a minimum of 2.5 years after he returns to the
U.S. before being eligible for naturalization.
Following is a link to Sec. 316. [8 U.S.C. 1427] of th INA: ACT 316 -
REQUIERMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE
PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE
UNITED STATES. Pay particular attention to part (c).
Sec. 316. [8 U.S.C. 1427]
(a) No person, except as otherwise provided in this title, shall be
naturalized, unless such applicant, (1) immediately preceding the date
of filing his application for naturalization has resided continuously,
after being lawfully admitted for permanent residence, within the
United States for at least five years and during the five years
immediately preceding the date of filing his application has been
physically present therein for periods totaling at least half of that
time, and who has resided within the State or within the district of
the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously
within the United States from the date of the application up to the
time of admission to citizenship, (3) during all the periods referred
to in this subsection has been and still is a person of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of
the United States.
(b) Absence from the United States of more than six months but less
than one year during the period for which continuous residence is
required for admission to citizenship, immediately preceding the date
of filing the application for naturalization, or during the period
between the date of filing the application and the date of any hearing
under section 336(a), shall break the continuity of such residence,
unless the applicant shall establish to the satisfaction of the
Attorney General that he did not in fact abandon his residence in the
United States during such period.
Absence from the United States for a continuous period of one year or
more during the period for which continuous residence is required for
admission to citizenship (whether preceding or subsequent to the
filing of the application for naturalization) shall break the
continuity of such residence except that in the case of a person who
has been physically present and residing in the United States after
being lawfully admitted for permanent residence for an uninterrupted
period of at least one year and who thereafter, is employed by or
under contract with the Government of the United States or an American
institution of research recognized as such by the Attorney General, or
is employed by an American firm or corporation engaged in whole or in
part in the development of foreign trade and commerce of the United
States, or a subsidiary thereof more than 50 per centum of whose stock
is owned by an American firm or corporation, or is employed by a
public international organization of which the United States is a
member by treaty or statute and by which the alien was not employed
until after being lawfully admitted for permanent residence no period
of absence from the United States shall break the continuity of
residence if-
(1) prior to the beginning of such period of employment (whether
such period begins before or after his departure from the United
States), but prior to the expiration of one year of continuous absence
from the United States, the person has established to the satisfaction
of the Attorney General that his absence from the United States for
such period is to be on behalf of such Government, or for the purpose
of carrying on scientific research on behalf of such institution, or
to be engaged in the development of such foreign trade and commerce or
whose residence abroad is necessary to the protection of the property
rights in such countries of such firm or corporation, or to be
employed by a public international organization of which the United
States is a member by treaty or statute and by which the alien was not
employed until after being lawfully admitted for permanent residence;
and
(2) such person proves to the satisfaction of the Attorney General
that his absence from the United States for such period has been for
such purpose.
[delete]
(c) The granting of the benefits of subsection (b) of this section
shall not relieve the applicant from the requirement of physical
presence within the United States for the period specified in
subsection (a) of this section, except in the case of those persons
who are employed by, or under contract with, the Government of the
United States. In the case of a person employed by or under contract
with Central Intelligence Agency, the requirement in subsection (b) of
an uninterrupted period of at least one year of physical presence in
the United States may be complied with by such person at any time
prior to filing an application for naturalization."
http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-22/slb-8654?f=templates&fn=document-frame.htm#slb-act316
Applications to Preserve Residence for Naturalization
"Those permanent residents who anticipate having an absence of one
year or more and who wish to naturalize are advised to take 2 steps in
insuring that their absence does not break continuous residence:
1. While in the U.S., if qualified to do so (see below), file an
application for a Re-entry Permit to reduce the chance that the
absence(s) will result in abandonment, and loss, of permanent resident
status, and
2. Make an Application to Preserve Permanent Residency to avoid
interrupting ?continuous residence? for purposes of eligibility for
naturalization.
http://www.immigration.bakerdonelson.com/aboutimmigration/details.cfm?ContentID=546&CatID=94#applications
I-131, Application for Travel Document [incl. Reentry Permit]:
http://uscis.gov/graphics/formsfee/forms/i-131.htm
Additional Links of Interest:
Naturalization
http://uscis.gov/graphics/services/natz/index.htm
A GUIDE TO NATURALIZATION
http://uscis.gov/graphics/services/natz/guide.htm
I hope I've been able to sort this out for you. If you have any
questions, please post a clarification request before closing/rating
my answer and I'll be happy to reply. I would like to suggest that he
ask his employer's lawyer to give you a copy of the Act where it backs
up the claim that he will be eligible for naturalization immediately
upon his return to the U.S.
Thank you,
hummer
Google Search Terms Used:
"reentry permit
i-131 uscis
"preserve residence for naturalization |
Clarification of Answer by
hummer-ga
on
29 Jun 2004 12:03 PDT
Hi tikdam,
As I said, I think your friend should get a second opinion, it would
be well worth her peace of mind. No, I am not a lawyer and cannot
provide professional advice. Rather, as researchers, we try to provide
as much information as possible in order for GA posters to make
informed decisions. It's the best we can do, really, in such a public
forum and without meeting face-to-face or even by phone. Sure, it's
possible that the lawyer knows of a loophole or work-around, but if
so, he should be more forthcoming. Your instincts seem to be telling
you that something isn't quite right - I would say, trust the
instincts and get another opinion.
To find a lawyer nearby, you could try FindLaw.
FindLaw: US Citizenship
http://public.findlaw.com/topics.html
You know, if I were your friend, I would be inclined to call the
district USCIS office which is handling her case and simply ask them.
It is her future that is at stake and she shouldn't take any chances
at all.
"Can you guide us for what to ask in specific to that lawyer to
confirm their or your stand/advice."
Ask him how he is getting around Sec. 316. [8 U.S.C. 1427] - it's the
law and is quite clear in its meaning.
Please forgive me for referring to your friend as a "him" instead of a
"her" in my answer, I'm sorry.
Thank you for your clarification - if you have any other questions,
please let me know.
Regards,
hummer
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