Announcement

Announcement Module
Collapse
No announcement yet.

Continuous stay requirement

Page Title Module
Move Remove Collapse
X
Conversation Detail Module
Collapse
  • Filter
  • Time
  • Show
Clear All
new posts

  • Continuous stay requirement

    I had a question about meeting the continuous residency requirements for filing for citizenship.

    I received GC approval - Aug 2009.

    I will complete 30 months of continuous stay in US in Feb 2012. (have not left US for more than 2 weeks that entire time)

    If I decide to move to India in Feb 2012 for family reasons, and visit the US 3 weeks every six months, so as to not break the 6 month rule, can I apply for citizenship in Aug 2014. (Presuming of course I maintain a house, credit card, bank accounts, auto, license, etc etc) I checked with the law firm that assisted with me with my GC and they said yes- But posting here as I have heard other answers to see if anyone else has had a similar situation.

    Question 2 is if i do stay on till 2014, when i can expect to complete all the formalities and be able to move to India - 2014 itself or would it involve a wait well into 2015 by the time I actually get the USC.

    Aprreciate any input/advice.

  • #2
    Of course you can. But they may very well question you on your last 2.5 years, as far as where have you been. so on paper you will be fine but subjectively someone might consider you broke it. I am in a similar situation somewhat. I will be eligible in applying in june. I have completed 30 months way long time ago but i have a 15 months absence, which I broke into a several pieces with short presences in usa, not to exceed 6 months in each absence. they may say on paper i am fine but they may also say where was i residing on that 15 month period? i had a car here, with insurance, bank accounts etc... but on that 15months i was away 90%of the time, although no absence is more than 6 months... so we will see... yours and mine are subjective situations, otherwise we are okay as far as formal rules... my advice though is, that you try to return to usa as early as possible before applying. (you will have to return 3 months before applying anyway which is 5 years, minus 90 days (the point you apply), minus 90 days (the point your presence should start)) but i am not a lawyer. check with your lawyer...

    Comment


    • #3
      Originally posted by amans View Post
      If I decide to move to India in Feb 2012 for family reasons, and visit the US 3 weeks every six months, so as to not break the 6 month rule, can I apply for citizenship in Aug 2014. (Presuming of course I maintain a house, credit card, bank accounts, auto, license, etc etc)
      Continuous residence often involves subjective decision making by the interviewer (and his/her supervisor, if involved). Spending 80-90% of the time outside the US for the next 2.5 years will put you at risk of denial, but it could go either way and we can't predict how the interviewer will exercise their discretion.

      Question 2 is if i do stay on till 2014, when i can expect to complete all the formalities and be able to move to India - 2014 itself or would it involve a wait well into 2015 by the time I actually get the USC.
      Processing time is currently about 5 months on average. That could change between now and 2014. But I wouldn't expect it to take much longer in 2014 unless there is something that triggers a flood of applications, like a new anti-immigrant law or a major increase in the application fee. In 2007-2008 there was the combination of the election year (people wanting citizenship so they can vote) and a fee increase that caused a flood of applications, increasing the average time to over a year.

      Note that you can apply 90 days before completing the full 5 years, so that would be May 2014.
      Last edited by Jackolantern; 13th February 2011, 11:31 AM.

      EB3 ROW I-485 Approved: July 2007
      USC: July 2013
      I am a layman, not a lawyer. What I write here is not official or professional legal advice. In addition, my answers on this forum are specific to the scenarios discussed in each thread and should not be generalized to other situations.

      Comment


      • #4
        Originally posted by amans View Post
        If I decide to move to India in Feb 2012 for family reasons, and visit the US 3 weeks every six months, so as to not break the 6 month rule, can I apply for citizenship in Aug 2014. (Presuming of course I maintain a house, credit card, bank accounts, auto, license, etc etc)
        You can only maintain one physical abode at a time. "Moving to India" implies your residence will be in India. In addition, visiting the US for 3 weeks every 6 months will show an overall pattern that you are trying to circumvent continuous residence requirement.
        Originally posted by amans View Post
        Question 2 is if i do stay on till 2014, when i can expect to complete all the formalities and be able to move to India - 2014 itself or would it involve a wait well into 2015 by the time I actually get the USC.

        Aprreciate any input/advice.
        It's impossible to say how long the process will take. The posted processing time average is 5 months, so expect it to take at least that long.
        Sent N-400 7/28/07
        PD 7/27/07
        Check cashed 12/5/07
        NOA 12/7/07
        FP notice 1/4/08 (received 1/10/08 )
        FP Date 1/30/08 (walk in done on 1/26/08 Charlotte)
        IL: 6/10/08
        ID: 8/28/08 (Durham DO) Passed!
        OL: 9/23/08
        OD: 10/06/08
        PP: 10/21/08 (applied)
        PP: 11/1/08 (received)
        ------------------------------------------

        ------------------------------------
        IMPORTANT NOTE: I am a Volunteer Moderator - one of you. I am not a lawyer. So act accordingly.

        Comment


        • #5
          Originally posted by amans View Post
          If I decide to move to India in Feb 2012 for family reasons, and visit the US 3 weeks every six months, so as to not break the 6 month rule, can I apply for citizenship in Aug 2014. (Presuming of course I maintain a house, credit card, bank accounts, auto, license, etc etc)
          This strikes me as a rather problematic plan which is fairly likely to backfire. As noted by others, the IO has wide discretion in determining continuous residency. A trip below 6 months in duration or a sequence of such trips stacked together can be viewed as having broken continuous residency (and even as having failed to maintain valid LPR status) depending the circumstances.

          The travel pattern you suggest (long absences abroad, with trips back to U.S. of about 3 weeks while keeping each absence below 6 months) certainly will raise red flags and suggest to the IO that you are trying to circumvent the rules. The language you used (move to India for family reasons) also suggests a permanent move, where your main place of residence changes from the U.S. to India. In order to maintain continuous residency and valid LPR status, the absences from the U.S. have to be temporary in nature. The IO will want to know exactly what you are doing in India, what your source of income is, if you still have a job back in the U.S., if you have taken a job in India, and so on. Going abroad on vacation, or to take a training course or to visit a friend are examples of temporary absences, but moving abroad "for family reasons" suggests something permanent or at least open-ended.
          Ultimately it'll depend on your luck with the IO adjudicating your application, but I would say that the probability of running into serious trouble is pretty high.
          N-400 [Chicago office, via Nebraska Service Cntr]
          Rec'd date: 12/06/2006
          FP notice date: 12/20/2006
          FP taken (Indianapolis): 01/11/2007
          2nd FP notice 09/09/2008
          2ndFP taken (Indianapolis) 09/26/2008
          Interview letter 01/24/2009
          Interview 03/26/2009 (completed)
          Oath letter rec'd 04/29/09
          Oath date 05/14/09 (completed)
          U.S. pssprt applied and rec'd (Chicago pssprt agency) 05/22/2009

          I am not a lawyer. Anything I say here is my personal opinion and should not be viewed as legal advice.

          Comment


          • #6
            Thanks Ketanco, Jackolantern Bobsmyth and Baikal - extremely helpful to know - i see there is very little ambiguity in all of your opinions - its quite amazing how a leading professional immigration firm attorney would not offer such a sobering caveats to her advice - which was basically a blanket "go for it".

            2 followup questions -
            A.
            Processing time is currently about 5 months on average. ..Note that you can apply 90 days before completing the full 5 years, so that would be May 2014.
            That would mean I apply in May 2014 - and expect to receive it in 5 months from that day (i.e. Oct 2014); or 5 months from the actual date I become elgible (i.e. Jan 2015) - assuming of course that processing times stay similar?

            B.
            A trip below 6 months in duration or a sequence of such trips stacked together can be viewed as having broken continuous residency (and even as having failed to maintain valid LPR status) depending the circumstances.
            If circumstances do enforce my need to be in India earlier than 2014, basically forcing me to abandon the citizenship process (given the slim odds as alluded to above), but I do not want to risk losing LPR at least for 2 or 3 years, is it adequate to take 3 week trips every six months or should I apply for a REP - at some stage? If so, how far ahead of time should I plan to apply for the REP before I decide to leave on long absence?

            Thanks once again to everyone for taking time - this is such a great forum.

            Comment


            • #7
              Originally posted by amans View Post
              Thanks Ketanco, Jackolantern Bobsmyth and Baikal - extremely helpful to know - i see there is very little ambiguity in all of your opinions - its quite amazing how a leading professional immigration firm attorney would not offer such a sobering caveats to her advice - which was basically a blanket "go for it".

              2 followup questions -
              A.


              That would mean I apply in May 2014 - and expect to receive it in 5 months from that day (i.e. Oct 2014); or 5 months from the actual date I become elgible (i.e. Jan 2015) - assuming of course that processing times stay similar?

              B.


              If circumstances do enforce my need to be in India earlier than 2014, basically forcing me to abandon the citizenship process (given the slim odds as alluded to above), but I do not want to risk losing LPR at least for 2 or 3 years, is it adequate to take 3 week trips every six months or should I apply for a REP - at some stage? If so, how far ahead of time should I plan to apply for the REP before I decide to leave on long absence?

              Thanks once again to everyone for taking time - this is such a great forum.
              I did not understand what you are asking in question A.

              Regarding question B: Technically, having a REP does not help with preserving the LPR status. The formal meaning of an REP is as a document needed for a re-entry after an absence of more than a year but less than 2 years (after such an absence the GC itself is an insufficient document for reentry). However, even a holder of an REP still has to show, to the satisfaction of the CBP officer processing the admission to the U.S., having maintained LPR status. As a practical matter, having an REP may be of some, albeit limited, value, since having applied for an REP tends to be interpreted as some evidence of intent to return. An REP is only valid for 2 years and cannot be applied for from abroad, so it may be a good idea to apply for one a few months before your departure.
              However, you should understand that, with or without an REP, the travel pattern of living abroad and coming to the U.S. every 5 months or so for 2-3 weeks will eventually cause problems with your LPR status. The first few times they'll let you in with no problems, then you'll get one or two warnings (which get recorded in the CBP computer system under your A-number). Eventually instead of just admitting you, they'll send you over to an immigration judge for GC revocation proceedings.
              How soon that would happen depends on your luck and on the kinds of explanations that you'll be able to offer regarding your absences to the CBP agents during re-entries. In some sense, it may actually be more beneficial to come back less frequently and actually use the REP. Still I would expect that eventually this will catch up with you...
              N-400 [Chicago office, via Nebraska Service Cntr]
              Rec'd date: 12/06/2006
              FP notice date: 12/20/2006
              FP taken (Indianapolis): 01/11/2007
              2nd FP notice 09/09/2008
              2ndFP taken (Indianapolis) 09/26/2008
              Interview letter 01/24/2009
              Interview 03/26/2009 (completed)
              Oath letter rec'd 04/29/09
              Oath date 05/14/09 (completed)
              U.S. pssprt applied and rec'd (Chicago pssprt agency) 05/22/2009

              I am not a lawyer. Anything I say here is my personal opinion and should not be viewed as legal advice.

              Comment


              • #8
                Originally posted by amans View Post
                its quite amazing how a leading professional immigration firm attorney would not offer such a sobering caveats to her advice - which was basically a blanket "go for it".
                Perhaps some lawyers see it as a money making opportunity rather than inform you of all the possibilities.
                Originally posted by amans View Post
                2 followup questions -
                A.


                That would mean I apply in May 2014 - and expect to receive it in 5 months from that day (i.e. Oct 2014); or 5 months from the actual date I become elgible (i.e. Jan 2015) - assuming of course that processing times stay similar?
                5 months from the time you apply.
                Originally posted by amans View Post

                If circumstances do enforce my need to be in India earlier than 2014, basically forcing me to abandon the citizenship process (given the slim odds as alluded to above), but I do not want to risk losing LPR at least for 2 or 3 years, is it adequate to take 3 week trips every six months or should I apply for a REP - at some stage? If so, how far ahead of time should I plan to apply for the REP before I decide to leave on long absence?

                Thanks once again to everyone for taking time - this is such a great forum.
                Such a pattern of travel for 2-3 years may raise suspicion at POE, so it's impossible to say how CBP will act.
                Sent N-400 7/28/07
                PD 7/27/07
                Check cashed 12/5/07
                NOA 12/7/07
                FP notice 1/4/08 (received 1/10/08 )
                FP Date 1/30/08 (walk in done on 1/26/08 Charlotte)
                IL: 6/10/08
                ID: 8/28/08 (Durham DO) Passed!
                OL: 9/23/08
                OD: 10/06/08
                PP: 10/21/08 (applied)
                PP: 11/1/08 (received)
                ------------------------------------------

                ------------------------------------
                IMPORTANT NOTE: I am a Volunteer Moderator - one of you. I am not a lawyer. So act accordingly.

                Comment

                Working...
                X