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N-400 Denied, when can I reapply again?

Discussion in 'US Citizenship' started by lost123, Sep 28, 2010.

  1. lost123

    lost123 Registered Users (C)

    Hi friends,

    I just received my N-400 denied decision and I was wondering when I can reapply again. The reason for the rejection was the lack of physical presence (part 316 general requirements for naturalization, section 316.2 eligibility).

    I have the option to go for a hearing, but if I can just reapply again now, that would be sufficient for me. In the rejection letter does not say any information or dates that I may reapply again, only information regarding the hearing request I can consider.

    Counting back the days out from the last 5 yrs, I would have a total of 881 days if I apply in Oct 15. Please advise if I may pursue that.

    Best regards,

    lost123
  2. sanjoseaug20

    sanjoseaug20 Registered Users (C)

    You can apply as soon as you are eligible.
    You have 881 days presence or 881 days absence.
    Either way, you seem to be close to the borderline ... you need to have a minimum presence of 913 days and 20 days more is still going to make them scrutinize your file more bringing continuous residence into discussion.

    If you were really present in US less than 913 days for your denied file, you are wasting your time appealing.
  3. Jackolantern

    Jackolantern Registered Users (C)

    Physical presence is just doing the math. There is no way to win an appeal unless you can show that USCIS made a mistake in counting the days.

    881 days inside the US? Or 881 days outside?
  4. lost123

    lost123 Registered Users (C)

    Hi, counting back in the last 5 yrs, I would have a total of 881 days outside of the country, thus, it is safe for me to reapply right away or am I chasing a ghost?

    Another question, after filling for the application, am I allowed to travel outside or will I bring myself again to the uncertainty and give more subjectivity of the officer? And how many days would you suggest to be outside of the country - the reason why I ask is because I have very important family matters to take care of abroad.

    Many thanks in advance,

    lost123
  5. sanjoseaug20

    sanjoseaug20 Registered Users (C)

    881 days outside US is within the legal limits so they will not deny you based on physical presence ... for your new filing as I presume the 881 day count is for the new filing.

    You are allowed to travel. They can't stop travel for people whose case is being processed.

    However, your numbers are so close to the limit that it is likely continuous residence rules will come into play. This impacts you if you have made a trip longer than 6 months, or multiple back to back trips close to 5 months in duration. Disproving it requires you showing ties to US such as maintaining your residence while you were abroad.

    I hope you are counting 881 days out based on a 5 year calendar rather than for the 4 years and 9 months. If you are using 4 years and 9 months, you should make sure you are in US at least 913 days. More will be much better.
  6. Bobsmyth

    Bobsmyth Volunteer Moderator

    Provide your travel dates during the last 5 years in order that your question can be answered.
  7. lost123

    lost123 Registered Users (C)

    Hey,

    These are my dates:

    27 OCT 05- 10 NOV 05: 14
    27 DEC 05 - 10 JAN 06: 14
    21 JAN 06 - 28 JAN 06: 7
    21 OCT 06 - 25 OCT 06: 4
    11 JAN 07 - 18 JAN 07: 7
    22 JAN 07 - 01 JUN 07: 130
    10 JUL 07 - 26 JUL 07: 16
    8 OCT 07- 8 NOV 07: 31
    28 JAN 08 - 25 APRIL 08: 88
    29 APRIL 08 - 29 MAY 08: 30
    21 JUL 08 - 3 DEC 08: 135
    12 DEC 08 - 7 FEB 09: 57
    12 FEB 09 - 22 MAY 09: 99
    28 MAY 09- 12 JAN 10: 229*
    25 SEPT 10 - 15 OCT 10: 20
    -------
    881

    [Also we already have our holiday planned & paid from 25 Dec 10 - 08 Jan 11]

    Even if I am under the 912 days, would the I/O make a big fuss that my husband lives abroad - raise questions since he is Egyptian, non-resident that they could possibly deny me for the citizenship? lol, I have been filling for taxes, maintaining bank account, credit card, paying off my student loan (my parents live in Miami), just finished my CPA exams and I am applying for my CPA license with Colorado state board??

    Thank you :)

    p.s. I won't appeal, I rather file a new application.
    Last edited by a moderator: Sep 29, 2010
  8. Bobsmyth

    Bobsmyth Volunteer Moderator

    The dates you provided add up to a total of 674 days..did you omit any?
  9. lost123

    lost123 Registered Users (C)

    Hi Bob, these are the dates, I made a slight mistake on the typing of the 28May09 to 12Jan10, it is suppose to be 229***

    I wanted to take this opportunity to also thank sanjoseaug20, Jackolantern & Bobsymth for helping me
  10. madh4

    madh4 Registered Users (C)

    The 229 days absence will create problem. Are there any special reasons for that long absence. The IO may not consider the absence favorably.
  11. Bobsmyth

    Bobsmyth Volunteer Moderator

    From your days outside the US, here are your days inside the US since 11 Nov 05:

    11 NOV 05-26 DEC 05: 45
    11 JAN 06- 20 JAN 06: 9
    29 JAN 06- 20 OCT 06: 264
    26 OCT 06- 10 JAN 07: 76
    19 JAN 07-21 JAN 07: 2
    02 JUN 07-9 JUL 07: 37
    27 JUL 07-7 OCT 07: 72
    9 NOV 07- 27 JAN 08: 79
    26 APRIL 08-28 April 08: 2
    30 MAY 08-20 JUL 08: 51
    4 DEC 08- 11 DEC 08: 7
    8 FEB 09-11 FEB 09: 3
    23 MAY 09-27 MAY 09: 4
    13 JAN 10-24 SEPT 10:254

    Which adds up to 905 days inside the US between 11 Nov 05 until 24 Sept 10. Assuming you were in the US from 24 SEPT 05-26 OCT05, this adds another 32 days for a total of 937 inside the US between 24 SEPT 05-24 SEPT 10, thereby confirming you are currently eligible to apply. However, until you confirm that you were in the US between 24 SEPT 05- 26 OCT 05, the eligibility determination is based on assumption.

    Also, the 229 days outside the US between May 09- Jan 10 assume you broke continuous residency unless you can prove otherwise. Did you maintain a US primary abode during that time?
    Last edited by a moderator: Sep 29, 2010
  12. Al Southner

    Al Southner Registered Users (C)

  13. Bobsmyth

    Bobsmyth Volunteer Moderator

    Not really.The denial was based on lack of physical presence. There's no mention of continuous residency in the denial. Had the OP met the physical presence requirement at the time, the break in continuous residency with the 229 day trip is only presumed and the OP would have been given the opportunity to prove otherwise.
  14. lost123

    lost123 Registered Users (C)

    I got married February 2009, before that I had always lived with my parents :) During this year (from Jan-Sept) I was also staying with them. My Driver's License, bank accounts, credit cards and loans have always been registered with this address and this is also the address I use to file my taxes. While I was abroad from Jul 08-Aug 09, I did some studying and also worked as a temp at the World Bank. From Aug 09-Jan 10 I was studying for my cpa at home (still abroad) and finishing my masters in the US (via the internet).

    Just to clarify, the denial letter only mentioned the problem with physical presence.

    I thought about applying for my husband,I might be mistaken, but I think I would have to be physically in the US in order for me as a green card holder to sponsor him, no? My initial plan was for me to get the citizenship then apply for him, as it processing and visa number are more abundantly available (and within a couple of months he would have the work permit, which is the most important documentation) for US citizens than Permanent Residents.

    I really thank you for your input and discussion. I am a bit scared and worried that if I apply (which means that I return to the US) I would still be denied, that is why I am seeking your opinion and advice. I have my GC since April 2004, and I received my GC through my father who was sponsored by a company. Thank you :)
  15. Bobsmyth

    Bobsmyth Volunteer Moderator

    First, were you in the US between 24 SEPT 05-26 OCT05? That will determine if you currently meet continuous presence.

    It's difficult to say how USCIS will view your evidence for the 229 day trip since you worked abroad. You can certainly try to build your case around the fact that the trip was for school and that you returned to your parents place afterwards, but there are no guarantees that your case will be approved. The fact that you are relatively close to not meeting physical presence may give USCIS reason to scrutinize the 229 day trip more.
  16. lost123

    lost123 Registered Users (C)

    Hi Bobsymth,

    Yes, I was in the US from 24 SEPT 05-26 OCT05, in fact my last trip prior to that was returning 30 Jul 2005. So, if I apply - continuous residence may come into play and they would raise the concerns. Is there a possibility that they can deny me off-right or would they consider requesting additional information?
  17. Bobsmyth

    Bobsmyth Volunteer Moderator

    Ok, so it's confirmed that you currently meet physical presence requirement.
    As for the 229 day trip, it assumes a break in continuous residence unless you can prove otherwise. If you apply now, you would be given the chance to prove US residency ties at the interview instead of being denied outright.
  18. lost123

    lost123 Registered Users (C)

    Awesome, thanks Bobsymth and everyone else :))))))))))) All the best

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