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4 years and one day rule, please clarify...

Discussion in 'US Citizenship' started by jonkco, Jan 20, 2007.

  1. jonkco

    jonkco New Member

    Hi all and thanks for all the information provided here, now I `ve been reading post about continuous residence and the 4 years and one day rule and I`ve seen posts saying that this rule is only applied to trips exceeding one year, but I also read posts saying that it`s valid for trips of 6 months to one year, as long as you have been LPR for longer than 5 years.
    Now my question is according to law and what I understand, it only applies to trips of 1 years or more....

    (ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with Sec. 316.5(d) , absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under Sec. 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)


    But I also found a letter from the Chief of the Naturalization and Special Projects Branch of the Office of Adjudications dated September 23, 1993: that clearly said that trips of 6 months to 1 year is eligible for the 4 years + 1 day rule, so what`s your position about this???


    **letter Appendix 74-13 of adjudicator`s manual



    The following is the text of a letter from the Chief of the Naturalization and Special Projects Branch of the Office of Adjudications dated September 23, 1993:


    Kiblan & Battles

    Attorneys and Counselors at Law

    1420 Beverly Rd., Suite 340

    McLean, VA 22101



    ATTN: Ms. Malea Kiblan


    Dear Ms. Kiblan:


    Your letter to Mr. Lawrence J. Weinig, Assistant Commissioner, Adjudications, has been referred to me since it concerns a naturalization matter.


    You have asked for an advisory opinion in cases where a naturalization applicant has been determined to have broken his/her continuity of. residence for naturalization purposes because of an absence of more than six (6) months but less than one (1) year, pursuant to the language in Section 316(b) of the Immigration and Nationality Act.



    Specifically, you would like to know if the first date he/she will be eligible to reapply for naturalization will be four (4) years plus six (6) months from the date of reentry or four (4) years plus one (1) day from reentry.



    The correct date would be four (4) years plus one (1) day. This is explained in 8 CFR 316.5(c) (1) (ii).



    I apologize for the delay in responding to your letter but, I hope that this information has been of assistance.



    Sincerely,




    In my case I took a trip that lasted 8 months ( back to USA in april 3, 2003 )
    and I want to apply april 2007 if possible, saving one year is important for me...I have been LPR since 1998, and If I try anyways to apply what are my chances to be approved, should I hire an attorney to come with me to the interview ???


    Thanks a lot for reading....

    jonkco
  2. boatbod

    boatbod Registered Users (C)

    The 8CFR316.5 spells out the letter of the law, and although is a little fuzzy, I do believe the intent is only to apply the 4yr+1day rule to trips over 1yr duration.

    If the rule were to apply to trips less than 1yr, you could in effect "advance" your eligibility by staying abroad for 181 days and get a net credit of 185 days (366 less 181), thus meaning anyone would be eligible after only 4.5 years... I don't think thats quite what the lawmakers had in mind!
  3. jonkco

    jonkco New Member

    thanks boatbod, I agree that it`s not the intent of the lawmakers to reduce the continuous residence period to 4.5 years or so, but what I understand from the law is I have to meet the 5 years requirement first and then if I break continuous residence after that then I would be eligible for the 4 years rule ( not so clear though), like in my case I have GC since 1998. Anyways I am just trying to find a loophole anything that I can use to defend my position if I decide to apply...
  4. baikal3

    baikal3 Registered Users (C)

    The text of the law seems quite clear. Paragraph 316.5(c) (1) (ii) specifically says, in its very title, that it is about absences "For period in excess of one (1) year".
    The 4 years plus 1 day rule described in this paragraph is for "An applicant described in this paragraph", that is for someone who had an absence of more than one year.

    This does not apply to an 8 months absence. I personally do not see any wiggle room here.

    One the other hand, an 8 months absence by itself does not necessarily constitute a break in a continuous residence requirement. You can try to convince an IO, by providing supporting documentation (see the document checklist in "A Guide to Naturalization") that this absence should not be viewd as breaking the continuous presence requirement. While USCIS has been rather rather restrictive lately in interpreting this rule, it is still a possibility.
  5. ketanco

    ketanco Banned

    I checked the 316 law section mentioned here. It says : "...may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence." Say, you applied end of 5 years and they found a period between 32nd month to 48th month of that 5 years (60 months) a break in continuous residency. Although you came and went in less than every 180 days, assume that they said you broke the residency. Now as far as 4 year plus 1 day, does this period start at the date corresponding to 48th month, which is the end of the continuous residency break period, or, does this 4 year start at your very latest entry to US (say you took a couple weeks trip to mexico and returned just a week before sending your application and that was your very latest trip outside to US)?
  6. baikal3

    baikal3 Registered Users (C)


    The 4 year plus 1 day rule is not applicable AT ALL in the situation you described. If the last trip that broke continuous residency was less than 1 year in duration, the only thing you can use is the 5 year minus 3 months rule. In this case the 5 year clock starts on the day you returned from that last trip that broke continuous residency.

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