N 400 denied due to "physical presence", reapply?

G

gsidhu

Registered Users (C)
I appreciate your time in advance.

My mother's application was denied due to "not physically present for required # of days".
Her chronology is as follows:

Sept.13, 2007 Obtained Permanent Residence immigrant class. IR5.

Date of absences: # of days absent from USA
12/05/2007 - 11/14/2008 341 (although USCIS only counted 338 days as applcn. receipt date was 12/10/2012, with reentry permit).
02/02/2010 - 05/27/2010 113
09/12/2010 - 03/03/2012 171
04/14/2011 - 04/25/2011 10
05/28/2011 - 11/22/2011 177
05/30/2012 - 11/23/2012 176

total no. of days absent : 985; 90 days rule was not applied to my surprise.

1. If we reapply on April 5, 2013 would she be safe? given she has not left US this whole time.
2. For her first extended 341 day absence, I had attached a cover letter stating that my mother has always resided with me and never worked, so she could not provide any proof such as lease, rent, retained employment etc.
Again, to my surprise,in the denial letter or the interview they never inquired about that time or proof. Moreover, they actually counted it towards her Continuous Residence as I was hoping and praying for.
Did we just get lucky or she actually is eligible for 4 years 1 day rule. My fear is what if they ask for proof of ties to the US when we reapply, we have none. Should I attach the same cover letter or not mention it at all?
Also,should I attach the 1st denial letter as an effort to substantiate the fulfillment of the original defficiency?

Thanks.
Gurpreet.

oops! another red flag, the denial letter does not mention anything about reapplying, only talks about N 365: hearing before an immigration judge.

Another thought: what if i file April 1 2013 (presuming 90 days early leeway), her absence from April 1, 2008 to Nov. 14 2008 will still count toward continuous residence? (or violate it?) keep in mind this whole trip lasted 11 months going back to Dec. 2007.

My mother just need to naturalize ASAP, but of course not looking forward to another denial. She barely spoke any english, but her hard work excelled her through her english and civics, she was so happy only to find a denial letter a week later.

Thanks for your time and advice.
 
gsidhu said:
total no. of days absent : 985; 90 days rule was not applied to my surprise.
Click to expand...
The 90-day rule does not apply to the physical presence requirement. Physical presence is calculated only as of the filing date, and time inside or outside the US after the filing date doesn't change it.

1. If we reapply on April 5, 2013 would she be safe? given she has not left US this whole time.
Click to expand...
If you've done the calculation correctly and know she has at least 913 days in the US since April 5, 2008, yes she should be OK as far as the physical presence requirement is concerned ... but if she really wants to be safe she should apply with 920 or more days to give some breathing room in case of slight miscalculations and reinterpretations by USCIS. Somebody with a borderline situation like that was denied because of how USCIS counted the days -- the guide says partial days in the US are counted as full days, but the adjudicator didn't follow that rule, resulting in denial because that person had slightly under 913 days of presence according to the (misguided) USCIS calculation.

Did we just get lucky or she actually is eligible for 4 years 1 day rule.
Click to expand...
She was eligible for the 4y+1d rule.
 
Thanks.
what about continuous residence? can they ask her to provide proof for ties to US during her 338 days visit? It was originally not questioned in the first interview at all!
 
Continuous residence and citizenship question ??

Hello

I was given a green card in 2007 since that year I travel back to my country several times on the first 2 years of becoming a green card holder ,I was 18 years old at that time and my parents remain in the us always(direct family) one trip I stay for 6 months and 20 days and the other ones 5 months or so ,less than 6 months,so overall i was outside for 20months total in several trips staying in US for a total of 4 months during the first 2 years making sure I was not losing the green card!!so at this point I haven't get out from the US for the last 3 years !!my parents already became US citizens because they never got out in 5 years and I am the only one missing, so when will be my best time to apply for naturalization??
 
Dear Jackolantern,
the first outside trip 11 monts broke continuous residency but no questions/proof were asked (although 8 CFR 316.5 was referenced in decision). Should I be worried about this in the new application. could they ask for ties to US during this period.
The denial letter talks about the four factors taken into consideration for continuous residence: Somehing along the line:
the applicant
1. did not terminate employment in US
2. immediate family remained in US
3. has full access to adobe in US
4. did not seek employment outside US.
AGAIN, the denial was based solely on "physical presence"INA 316(a)(1).

thanks.
 
gsidhu said:
Dear Jackolantern,
the first outside trip 11 monts broke continuous residency but no questions/proof were asked (although 8 CFR 316.5 was referenced in decision). Should I be worried about this in the new application. could they ask for ties to US during this period.
Click to expand...

2-3 years ago there were reports on this forum about the interviewers asking for proof of ties to the US for the long absence before the 4 years and 1 day mark. But in recent posts by people who used the 4y+1d rule (including this thread), it seems that they are no longer doing that.
 
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