Residency establishment

[movingalong]

Guys:

My wife had her interview in San Antonio for N 400. She was asked to get the case "re-opened" in December this year because she had gone out of US for 2 months in August 2002 after getting the green card in July 2002. Apparently te get the residency established and get the clock start ticking for citizenship eligibility a person has to stay in US for atleast 3 months after getting the green card approval.

Two questions for the forum:
1. Has anyone been aware of this kind of situation earlier? I am not an expert so this was somewhat new to me
2. What does getting the case "re-opened" mean? How do we do it?

Thanks for the help

[immigrateful]

Guys:

My wife had her interview in San Antonio for N 400. She was asked to get the case "re-opened" in December this year because she had gone out of US for 2 months in August 2002 after getting the green card in July 2002. Apparently te get the residency established and get the clock start ticking for citizenship eligibility a person has to stay in US for atleast 3 months after getting the green card approval.

Two questions for the forum:
1. Has anyone been aware of this kind of situation earlier? I am not an expert so this was somewhat new to me
2. What does getting the case "re-opened" mean? How do we do it?

Thanks for the help

Never heard of this before. Even if this were true, she should be completing 5 years in September 2007. You can subtract 90 days from that date and she could file today.

This is a new requirement that I've never heard of - can you post details - did she quit her job, travel dates, whether this was a conditional PR, etc?

[McMahon]

Also, did she live outside the USA before getting her Green Card?

[boatbod]

I'm confused. We can help more once we know all the facts, so please detail your wife's travel timeline from when she obtained her GC until today.

[Jackolantern]

Maybe because she left the US so soon after getting the green card, they don't count the short time before leaving the US as having "established residence". How many days (approx.) passed between getting the GC and leaving in August 2002?

[movingalong]

She got her GC in the end of July 2002 as an H4 dependent to my H1B EB2 I-485 application.

She is a homemaker so work related requirements, AC 21 etc do not apply to her.

She left to go out of country at the end of August 2002 and came back at the beginning of November. So the total stay was 75 days out of country after being here for 32 after the grant of GC.

Then she went out of country in 2005 (Jan-Mar).

We went on vacation out of country in 2006 for 12 days and again this year for another 10 days.

The total number of days out of the country have been less than 180 after adding up all the trips since the grant of GC until today.

[immigrateful]

She got her GC in the end of July 2002 as an H4 dependent to my H1B EB2 I-485 application.

She is a homemaker so work related requirements, AC 21 etc do not apply to her.

She left to go out of country at the end of August 2002 and came back at the beginning of November. So the total stay was 75 days out of country after being here for 32 after the grant of GC.

Then she went out of country in 2005 (Jan-Mar).

We went on vacation out of country in 2006 for 12 days and again this year for another 10 days.

The total number of days out of the country have been less than 180 after adding up all the trips since the grant of GC until today.

From whatever I have learnt about N-400 and the citizenship process, I think there has been some misunderstanding. I've never heard of this requirement before. You might want to talk to a lawyer if you think it is worth the money to expedite.

Another approach would be do an infopass and find out what is going on.

I think she's eligible.

[boatbod]

Actually I think Jackolantern hit the nail on the head. Since formal residency was never established in July 2002 due to the trip in August, I wouldn't mind betting that her time as a resident (and thus the 5yr citizenship clock) didn't start ticking until she returned in November.

None of the other trips look significant in any way, so I'd work with assumption that she could file N-400 90 days prior to the 5yr residency anniversary in Nov 2007.

[movingalong]

IO told her that her case will be closed and she will have to request a re-opening. She will not "loose anything" in the sense that no fees will have to be paid but fingerprinting etc will have to be done. I don't know if they will communicate this closing etc in writing. Also for fingerprinting they charge a fee so not sure whether I just sent the app with a cover letter.

Also can you guys point me to a specific section/sub-section that requires a 3 month stay before leaving country after grant of GC?

Thanks for all the help

[Jackolantern]

Also can you guys point me to a specific section/sub-section that requires a 3 month stay before leaving country after grant of GC?

I don't think there is any such rule.

You probably would win if you appealed, but by the time you do all of that it would be later than December. Might as well just do the reopen in December.

[boatbod]

Also can you guys point me to a specific section/sub-section that requires a 3 month stay before leaving country after grant of GC?

No such rule is explicitly stated in 8.CFR / INA 316, however if you read the eligibility rules, there are sufficient threads that can be tied together to support the USCIS ruling.

References INA 316 and 8.CFR 316.5

In situations where the applicant is absent for periods less than 1 year, 8.CFR 316.5 states the following:

(5) Residence during absences of less than one year.
(i) An applicant’s residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant’s departure abroad.

To me, the crux of the matter is that you cannot claim to have any continuity of residence if you never established residence in the first place. As far as I am aware, you need to reside in a state or district for a minimum of 90 days before you are legally considered a resident.

[movingalong]

I have heard about that 90 day/3-months aplication only to establish residency regarding the USCIS office that has jurisdiction over the N400 application. We have lived all over the place. My wife's GC was approved when we were in Michigan and now we live in Texas. We had been in resident at the same address in Texas for 7 months before N400 was filed.

Regarding the residency etc for the overall N400 eligibility from whatever I understand this 90 day/3-months rule doesn't seem to be explicitly discussed.

[TheRealCanadian]

To me, the crux of the matter is that you cannot claim to have any continuity of residence if you never established residence in the first place. As far as I am aware, you need to reside in a state or district for a minimum of 90 days before you are legally considered a resident.

I don't think it's a stretch to argue that she had already established residence prior to becoming a permanent resident.

[McMahon]

I agree RealCanadian - if she has had a Driver's license for more than three months before she left by the end of August 2002. movingalong, if this is the case, the DMV of the state where you were living during the summer of 2002 should have kept track of your wife's Driver's License and you may want to contact them.
Disclaimer: I am not a lawyer.

[Jackolantern]

It will take more time to fight this than to wait a few months and do a "reopen".

[boatbod]

It will take more time to fight this than to wait a few months and do a "reopen".

More expensive too.

[movingalong]

Do you think it would be worth a try writing a polite letter summarizing some of the points you guys have mentioned and sending it directly to the Officer who interviewed her at San Antonio and also send a copy to TSC in Mesquite, TX.

would they review their assessment and react? Or do these letters just get tossed into the trash can?

[Jackolantern]

Do you think it would be worth a try writing a polite letter summarizing some of the points you guys have mentioned and sending it directly to the Officer who interviewed her at San Antonio and also send a copy to TSC in Mesquite, TX.

It's not worth it if you do it yourself. If you're going to do it, get a lawyer to send the letter. You have to be on solid footing if you are going to convince the USCIS to change their mind on a decision they have made.

But note that it is possible the lawyer might advise against challenging this at all, if he/she has reason to believe that the challenge will delay the case beyond December as a result of it being routed to higher-level officials in USCIS (generally somebody higher up has to get involved if a low-level officer's decision is going to be overturned).

[EmGi]

Actually I think Jackolantern hit the nail on the head. Since formal residency was never established in July 2002 due to the trip in August, I wouldn't mind betting that her time as a resident (and thus the 5yr citizenship clock) didn't start ticking until she returned in November.
None of the other trips look significant in any way, so I'd work with assumption that she could file N-400 90 days prior to the 5yr residency anniversary in Nov 2007.

Have a similar question. Parents obtained green card in 2003 and stayed in US 1 month. Returned 2 months later and stayed 2.5 months. Finally left for a month and returned to US for 6 months. In calculating the initial 3 months to start the clock ticking, do I add the initial 1 month to 2 of the 2.5 months to obtain 3 months? Or must it be a continuous 3 month period and wait for the beginning of the 6 month period to start the intial 5 year clock ticking?

Thanks for any help.

[boatbod]

It seems to me your parents situation is simpler than the one described by the OP. Since your parents didn't do anything to break their residence, they are probably good to count the residency period from GC "resident since" date.