N-400 denied - seemingly due to USCIS miscalculating time out of the country - input welcomed

[Bearish1]

But the exact language in 8 CFR is that “periods that total at least half of that time.”

Correction to what I wrote earlier: The exact quote from 8 CFR should have been “must have resided in the United States for at least 5 years … and been physically present for periods totaling at least half of that time”.

 

[Bearish1]

Correction to what I wrote earlier: The exact quote from 8 CFR should have been “must have resided in the United States for at least 5 years … and been physically present for periods totaling at least half of that time”.

Sorry, that was from the Manual not 8 CFR. Perhaps it would be better if I quote the INA :
“during the five years immediately preceding the date of filing his application [the applicant] has been physically present therein for periods totaling at least half of that time”

 

[nwctzn]

I am clearly having some editing problems today. I am trying again:

Of course it is better to stay on the safe side, but if you believed in the manual (like I did) and/or had other pressing constraints that limit your ability to come back and stay in the US, and you found out about this issue only after you stayed all those days abroad (when it was too late to reverse the situation), then you would be interested in the precise answer. Otherwise, you should have no interest in the issue. Nevertheless, thanks for the response anyway, and your recommendation is definitely a good one: Do not stay outside the US too long (IF YOU CAN) if you are planning a naturalization application.

A precise answer is really tricky here, especially if you have a close case where every day counts. The USCIS can basically reject your application saying that you do not show intent to live and work in the US if you are so many days out of the country anyway.

Another interesting comment that I found on this thread is the example when you leave for a trip (say to Canada) on December 16 at 1pm and return to the US on December 17 at 2pm. Clearly that trip is more than 24 hours and you must list it as a day out of the US, but if you count the entry and departure dates as days in the US you have zero days out of the US. So there is really a confusion in the guidelines. To prevent this confusion, I think the USCIS just needs to put this into their calculation rules for trips more than 24 hours:

Days out of the US = arrival date - departure date

This would take care of the 50% presence interpretation since on the average you are 50% in the US on your departure and arrival dates. It would also take care for day trips to Canada or Mexico if they exceed 24 hours. Well, I am not the law or rule maker, so just my two cents on this issue as a new citizen.

 

[Jackolantern]

The bottom line: Avoid putting yourself in a situation where your naturalization approval depends on a borderline calculation or interpretation. Such situations increase your risk of denial even if you're in the right, so give yourself lots of "breathing room" to allow for USCIS miscalculations and misinterpretations.

 

[Bearish1]

The Bottom Line

The bottom line: Avoid putting yourself in a situation where your naturalization approval depends on a borderline calculation or interpretation.

This is not the correct bottom line here because this thread is about the denial of a specific application based on how the number of days was counted. (It is not about a topic like “recommendations for future N-400 applicants.”)

The correct bottom line here seems to be the following:

The Adjudicator of the OP’s application clearly violated the Adjudicator’s Field Manual when counting the days. Therefore the denial that is the subject of this thread was not proper. (Please correct me if I am wrong.)

PS: I apologize for mistyping Bobsmyth’s username above, as well as for the other errors/corrections in my earlier posts (although I straightened them out all at the end I think). I am having major problems with my laptop, making such errors easy to make.

 

[Bearish1]

A precise answer is really tricky here, especially if you have a close case where every day counts.

I think a precise answer is not tricky here; the precise answer is clear. The number of days must be counted in the specific way described in the AFM and the Guide.

However, the decision regarding continuous residency may not have a precise answer and rely heavily on the judgment of the adjudicator (unlike the question of how to count the days, which seems to have a precise answer.)

 

[Jackolantern]

This is not the correct bottom line here because this thread is about the denial of a specific application based on how the number of days was counted. (It is not about a topic like “recommendations for future N-400 applicants.”)

OK, call it a "lesson learned for future applicants" if you don't like the words "bottom line." My point still stands: individuals who apply with borderline situations put themselves at a real risk of being denied even if they're rightly qualified for citizenship, because USCIS is known to issue wrongful denials for borderline situations. The denial for this case was wrong, but could have been avoided if the OP either kept a few of the trips a bit shorter or waited a bit longer to build up sufficient physical presence to be far enough above the 913 day threshold after accounting for the possibility of such USCIS misinterpretations.

 

[Bearish1]

OK, call it a "lesson learned for future applicants" if you don't like the words "bottom line." My point still stands: individuals who apply with borderline situations put themselves at a real risk of being denied even if they're rightly qualified for citizenship, because USCIS is known to issue wrongful denials for borderline situations. The denial for this case was wrong, but could have been avoided if the OP either kept a few of the trips a bit shorter or waited a bit longer to build up sufficient physical presence to be far enough above the 913 day threshold after accounting for the possibility of such USCIS misinterpretations.

Of course it would be better not to get too close to the borderline, but other limitations may prevent an applicant from doing that. In fact the original poster of this thread appears to be in that situation. So going back to the original question…

If the original poster took with him a printout of the relevant page from the Adjudicator’s Field Manual (the page telling adjudicators to give full credit for partial travel days), and gave that page to the interviewing officer, seeing that page should have made the officer correct the way he counts the days, shouldn’t it?

Or, would (or could) the officer flagrantly ignore what the Adjudicator’s Manual says, despite showing him the relevant page ?

 

[Jackolantern]

Of course it would be better not to get too close to the borderline, but other limitations may prevent an applicant from doing that. In fact the original poster of this thread appears to be in that situation. So going back to the original question…

If the original poster took with him a printout of the relevant page from the Adjudicator’s Field Manual (the page telling adjudicators to give full credit for partial travel days), and gave that page to the interviewing officer, seeing that page should have made the officer correct the way he counts the days, shouldn’t it?

Or, would (or could) the officer flagrantly ignore what the Adjudicator’s Manual says, despite showing him the relevant page ?

They are known to flagrantly dismiss attempts by the applicant to show additional evidence, and thus the evidence gets excluded from the file that the supervisor sees. However, including that sheet with the application submission and mentioning it on the attached sheet where the 36 trips were listed would have forced the interview and supervisor to see it, which may have made them think longer before giving the denial.

The OP hasn't returned to report any progress since May. By now the OP could have reapplied and completed the oath.

 

[mogambo1]

Well I had 8 trips, so I definitely would have been over if either only the exit dates were counted as being outside the US, or both entry and exit dates were counted that way.

Your case seems to be interesting, would you mind sharing your travel details with me, either here or if you prefer privacy then through messaging. My girl friend is in similar situation and this would greatly help her. Thanks.

 

[mogambo1]

.

For anyone who is interested, I went to see a lawyer last week which was informative if not particularly useful for my case.

The lawyer told me that what was written in the USCIS guide about partial days was 'meaningless'. He'd not had direct experience with a case so close but spoke to a colleague who had learned the way this was handled in close cases at an immigration conference. The method used apparently was based on whether you are physically present in the US for 50% or more of a particular day. I re-did the calculation on my trips as I still have a record of flight arrival/departure times, and this doesn't buy me enough time. The lawyer is checking to see if he can find any other precedent cases or details on USCIS operating procedure. If he does not, then there is no point appealing at this stage as there would be nothing to build a case on...so I will re-apply in Jan 2012 by which time I'll have 'gained' another 40 days or so.
I don't get this as your this post's posting date is 13/May/2011, while if you wait till Jan 2012 you will have another 6months or about 180 days in your favor provided you stay at a stretch without break during this time. So how come you are saying that you will only be able to accumulate only 40 days till Jan 2012 when actually / theoretically you would be able to accumulate 180+ days by Jan 2012. One more question: When filing 90 in advance do we need to do calculations of day till our 5 years anniversary or we calculate till date of filing which in anyways will be 90 days less of 5 years (provided a person lived in US without any outside trips) but a for another person lets say who is just short of 90 days out of 913 days the officer will not even see +90days which an applicant would have accumulated which waiting for his 5 year anniversary to complete. So shall we write on from total days till 5 year anniversary of just calculate days till the date form was mailed or third scenario where an applicant calculates days till day of filing the n-400 but also fills another one which has day calculated till the day of interview and ask officer to review ths new form which has days calculated till day of interview. Any thoughts on this? So key learnings have been:

*USCIS guidance in the Naturalization brochure is meaningless.
*People who have been approved based on counting both arrival & departure days as in the US have probably been lucky.
*Apparently the way they resolve this in closes cases is to count a day where you've been in the US for 50% of the time or more as 'in'.

Overall highly irritating, considering that I'd based my application timing on the guidance in their brochure. If this guidance had been clear then I wouldn't have taken a 35 day trip last year and wouldn't be in this situation. Still, you live and learn - it's been educational!

 

[Jackolantern]

I don't get this as your this post's posting date is 13/May/2011, while if you wait till Jan 2012 you will have another 6months or about 180 days in your favor provided you stay at a stretch without break during this time. So how come you are saying that you will only be able to accumulate only 40 days till Jan 2012 when actually / theoretically you would be able to accumulate 180+ days by Jan 2012.

Sometimes an individual can wait a whole extra year or more and not gain a single day of physical presence. It depends on the pattern of trips (or lack thereof) at the early part of the 5 year lookback window.

For example, suppose an individual got their GC at the start of Feb 2007 and took zero trips outside the US in 2007. Then in 2008-2011 they spent 31 months total outside the US. So right now they would have a GC for 5 years but be 1 month short of physical presence. You might think they just have to wait an extra month to meet the 30-month requirement, but that is not the case.

For every day they wait in 2012, a day in 2007 drops out of the 5-year window because the 5-year window shifts forward. So there is no net gain in physical presence until they wait long enough that some of the trips in 2008 or later start to drop out of the 5-year lookback window. Which means having to wait until 2013 or later for this hypothetical case, and for similar reasons the OP found that waiting 6+ months only resulted in a 40-day gain.

When filing 90 in advance do we need to do calculations of day till our 5 years anniversary or we calculate till date of filing which in anyways will be 90 days less of 5 years (provided a person lived in US without any outside trips) but a for another person lets say who is just short of 90 days out of 913 days the officer will not even see +90days which an applicant would have accumulated which waiting for his 5 year anniversary to complete.

Physical presence is counted only up until the filing date; no credit for physical presence is given for time spent waiting after the application is submitted.

 

[mogambo1]

Thanks for your reply. In my case I had few trips outside USA which are coming to 644 days outside USA during 9 trips, due to family health situation. But where first 2.5 years I had just 2x one-month-each trips so was almost clean, but due to family health situation lately I had to make more trips. I still will be able to accumulate 1100days in USA, if I apply 80days instead of 90-days before 5-year anniv. which I think should be okay.

I think in my case if I will wait any longer (but only after 5 yr anniversary, but if I apply anytime between -90 of 5Y to exact 5Y more waiting would add more days till I actually file, but wont bring down the number of days outside usa since that had happened due to my recent visits) I will be shifting my 5 years window towards bad part (frequent trips) of my stay in/ or stay out of USA (That is trips that I made during last 2 years), so I think it wont be worthwhile for me to wait.

So I believe waiting to accumulate more day may prove beneficial for some while it may not for others as later waiting may hide your good early years of continued physical presence, isnt it? I have enough evidence of continued residence though.


m few

Sometimes an individual can wait a whole extra year or more and not gain a single day of physical presence. It depends on the pattern of trips (or lack thereof) at the early part of the 5 year lookback window.

For example, suppose an individual got their GC at the start of Feb 2007 and took zero trips outside the US in 2007. Then in 2008-2011 they spent 31 months total outside the US. So right now they would have a GC for 5 years but be 1 month short of physical presence. You might think they just have to wait an extra month to meet the 30-month requirement, but that is not the case.

For every day they wait in 2012, a day in 2007 drops out of the 5-year window because the 5-year window shifts forward. So there is no net gain in physical presence until they wait long enough that some of the trips in 2008 or later start to drop out of the 5-year lookback window. Which means having to wait until 2013 or later for this hypothetical case, and for similar reasons the OP found that waiting 6+ months only resulted in a 40-day gain.



Physical presence is counted only up until the filing date; no credit for physical presence is given for time spent waiting after the application is submitted.

 

[DiscoChap]

I have a similar problem:

Details:
01/16/2009 - 05/13/2009 - 116
08/23/2009 - 08/28/2009 - 4
09/17/2009 - 12/29/2009 - 102
03/06/2010 - 08/26/2010 - 172
09/10/2010 - 03/13/2011 - 183
07/01/2011 - 09/16/2011 - 76
11/07/2011 - 02/06/2012 - 90
04/03/2012 - 09/11/2012 - 160
04/13/2013 - 05/28/2013 - 48
Total = 951 (38 days short of the required 913)

I applied without knowledge of the 913 day rule and got denied. Now I am confused as to whether I have to wait till next year to apply or if I only need wait until I make up the 38 days. How does the law apply?

 

[Jackolantern]

I applied without knowledge of the 913 day rule and got denied. Now I am confused as to whether I have to wait till next year to apply or if I only need wait until I make up the 38 days. How does the law apply?

For physical presence they look at the 5 years counting backwards from the filing date. Some people who were denied for the same reason are eligible to reapply immediately, others have to wait more than 2 years depending on the timing of their various trips.

Pick a hypothetical date when you want to apply, then look back 5 years from the desired filing date and add up all your trips during that 5 year period. If you're outside the US less than 913 days during that period, you're good to go.

Looking at your travel history and doing some rough math in my head, I can see that you can't apply in 2013. You'll have to wait until enough days of that first 2009 trip drop out of the 5-year window, which would be sometime in the first half of 2014. And don't apply when you exactly hit 913 days; wait a bit longer to give yourself more breathing room (e.g. less than 900 days outside the US) otherwise you could end up being (wrongfully) denied like the poster who started this thread, due to the interviewer's misinterpretation of how to count the days.

 

[memevertical]

The way I calculated my days out, was using Excel, when I put 07/10/13 - 07/08/13 = 2 . So, it does calculate the departure and entry combined as 1 day.

It helps me to be on the safe side......

 

[Ukraininan7]

Hi there!
I very much hate digging up a 2-year old thread, but it looks like it is the closest one to the situation I might be getting into now. I was particularly wondered if there were any known examples lately of how cases like the one in this post (and like mine) are resolved.

My story is the following - I have a very borderline physical presence situation due to my regular travel pattern (more than 20 trips abroad over last years, most of them very work-related).
At the time I was filing my N-400, I used a USCIS Guide to Naturalization, specifically page 24 "Generally, partial days spent in the US count as whole days spent in the US" in calculating my physical presence - in other words, I excluded both days of arrival and days of departure from time outside of the US. As a result of that calculation, I got a little less than 40 days MORE in the US than outside, considered myself eligible and applied.

I recently had an interview that generally went well (I passed all tests etc.), but the IO told me that he couldn't have made a decision right away and that he must have verified my travel dates independently "through his databases". And here is when I start getting a little nervous...

It looks like if he counts ONE out of TWO days (e.g. only departure date) as a day in the US, I will still be eligible, but I'll have only 1 day (!) more in the US than outside.
Logically, if he excludes BOTH days, I will be deemed ineligible.

So, any updates on the recent practice? I found a USCIS "Policy Alert" PA-12-001 paper dated Jan 7, 2013 that highlights updates in Policy Manual, and in Part D it explicitly says: "Establishes that days of travel to and from the US will count as days of physical presence in the US."

Any recent similar cases you might have heard of? I don't want to magnet bad news, but I just want to have a clear idea for myself if I was in the right here doing calculation as I did, or if I just wasted $700 and almost 6 months of my time?

Thanks!

 

[Andrei Romanenko]

Here is a xxxx to count days of trips outside of the United States for naturalization application. The calculator accounts for partial days spent outside of the United States.

 

[Indouscis2017]

In my case, my application was denied because the IO miscalculated the dates.
Here is how it looks like;
Statutory time is 3 years (married to US citizen).
N400 received 2/15/17
from 2/15/14 to 2/15/17 i spent 478 days outside the US.
after filling the N400 i stayed outside the US 101 days from 4/6/17 to 7/16/17
in the denial letter the Officer added the 101 days to the 478 days to total 579 days and denied the application on the basis that i stayed overseas over half of the 3 year period (548)
Any input ? i am thinking to file an n336

 

[Eyue]

1. If I sing my application today (11/20/17), should I start listing my abroad trips from 11/20/12?

2. If my one of my trips started before that date (on 11/05/12), should I start from 11/20/12 anyway?