Tricky citizenship application

rick92

rick92

Volunteer Moderator
I have a good one for you guys, Master Chess makers. Lawyers have different opinions about this one and I have no clue what's right or wrong.

Lets see what you guys can come up with. It might be easy or it might be difficult.
This person wants to apply for Citizenship ASAP. the question is when can she apply ???

Here is the DATA:

GREEN CARD 08/18/2004
EXP DATE 09/16/2014

EXIT USA 09/02/2004
ENTRY USA 09/29/2004
EXIT USA 04/09/2005 - REENTRY PERMIT APPROVED 2 YEARS
ENTRY USA 08/19/2006
EXIT USA 12/28/2007
ENTRY USA 01/27/2008
EXIT USA 05/31/2008
ENTRY USA 06/21/2008

:confused::confused::confused:
 
that"s correct. Applying based on 5 years. But why then 4 years and 1 day ? Bcs of the rentry permit?
 
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rick92 said:
I have a good one for you guys, Master Chess makers. Lawyers have different opinions about this one and I have no clue what's right or wrong.

Lets see what you guys can come up with. It might be easy or it might be difficult.
This person wants to apply for Citizenship ASAP. the question is when can she apply ???

Here is the DATA:

GREEN CARD 08/18/2004
EXP DATE 09/16/2014

EXIT USA 09/02/2004
ENTRY USA 09/29/2004
EXIT USA 04/09/2005 - REENTRY PERMIT APPROVED 2 YEARS
ENTRY USA 08/19/2006
EXIT USA 12/28/2007
ENTRY USA 01/27/2008
EXIT USA 05/31/2008
ENTRY USA 06/21/2008

:confused::confused::confused:
Click to expand...

Looks pretty straightforward:
8/20/2010: 4 yrs + 1 day after return from the trip that broke continuous residence.

What are the lawyers saying?
 
rick92 said:
that"s correct. Applying based on 5 years. But why then 4 years and 1 day ? Bcs of the rentry permit?
Click to expand...

No. it is because she broke continuous residence by being out of the country between 4/2005 and 8/2006.

Her LPR date is still 8/18/2004 and so she crossed the 5 yr LPR on 8/18/2009.
She has the requisite months of physical Presence.
What she doesn't have is Continuous residence (which is different from permanent residence and Physical presence)
 
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rick92 said:
that"s correct. Applying based on 5 years. But why then 4 years and 1 day ? Bcs of the rentry permit?
Click to expand...

Because of the break in continuous residence. The reentry permit permits her to keep her LPR status but does not preserve continuous residence.

From 8 CFR 316.5:

(c) Disruption of continuity of residence
(1) Absence from the United States .
...
(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 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 § 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)
 
Lawyers that have been consulted have different opinions. They are little messed up with dates.

GungaDin said:
Looks pretty straightforward:
8/20/2010: 4 yrs + 1 day after return from the trip that broke continuous residence.

What are the lawyers saying?
Click to expand...
 
rick92 said:
Lawyers that have been consulted have different opinions. They are little messed up with dates.
Click to expand...

It seems like a very clear case of 4 years + 1 day which would make it 8/20/2010 being the date of eligibility for this person to apply for naturalization.
 
rick92 said:
GREEN CARD 08/18/2004
EXP DATE 09/16/2014

EXIT USA 09/02/2004
ENTRY USA 09/29/2004
EXIT USA 04/09/2005 - REENTRY PERMIT APPROVED 2 YEARS
ENTRY USA 08/19/2006
EXIT USA 12/28/2007
ENTRY USA 01/27/2008
EXIT USA 05/31/2008
ENTRY USA 06/21/2008
Click to expand...

I'd say that this person is eligible to apply in May 2011 (5 years -90 days from 8/19/2006). Since she left the U.S. less than one year after the GC was approved/received, I don't believe that she's eligible for the 4 years 1 day rule. I think there was a similar case discussed on the forum a couple of days ago.
 
Vorpal said:
I'd say that this person is eligible to apply in May 2011 (5 years -90 days from 8/19/2006). Since she left the U.S. less than one year after the GC was approved/received, I don't believe that she's eligible for the 4 years 1 day rule.
Click to expand...
You're mixing things up. If the absence outside the US is less than 1 year, eligibility for 4 years + 1 day rule becomes questionable. But there is absolutely no need to spend 1 year inside the US before leaving on a long trip, in order to benefit from the 4y+1d rule. The OP is eligible to apply with the 4y+1d rule, which would be 8/20/2010.
 
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Jackolantern said:
You're mixing things up. If the absence outside the US is less than 1 year, eligibility for 4 years + 1 day rule becomes questionable. But there is absolutely no need to spend 1 year inside the US before leaving on a long trip, in order to benefit from the 4y+1d rule. The OP is eligible to apply with the 4y+1d rule, which would be 8/20/2010.
Click to expand...
There was a case of someone who was denied based on not meeting continuous residence requirement since they left US for 3 months within 1 month after receiving GC eventhough the applicant had the required amount of continuous residency after returning back from the trip.
There have been other reports of people being questioned or denied based on not meeting continuous residency since they left US for a few months within a month of receiving GC, eventhough they had the required amount of continuous residency days after they returned to the US.
 
Bobsmyth said:
There was a case of someone who was denied based on not meeting continuous residence requirement since they left US for 3 months within 1 month after receiving GC eventhough the applicant had the required amount of continuous residency after returning back from the trip.
There have been other reports of people being questioned or denied based on not meeting continuous residency since they left US for a few months within a month of receiving GC, eventhough they had the required amount of continuous residency days after they returned to the US.
Click to expand...
I know of such cases, but that doesn't affect the OP. The IO can possibly point out that residence was not established on 8/18/2004 due to the exit on 9/02/2004, but the OP spent 9/29/2004 to 4/9/2005 in the US, so the worst case is that residence was established on 9/29/2004. That is more than 5 years ago, so the date of establishing residence cannot be used as grounds for denial. In the cases you quoted, the IO-adjusted residency establishment date was less than 5 years before they applied.

The issue here is the breaking of continuous residence for that trip of over 1 year, and such a trip would allow use of the 4 years + 1 day rule.
 
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Jackolantern said:
I know of such cases, but that doesn't affect the OP. The IO can possibly point out that residence was not established on 8/18/2004 due to the exit on 9/02/2004, but the OP spent 9/29/2004 to 4/9/2005 in the US, so the worst case is that residence was established on 9/29/2004. That is more than 5 years ago, so the date of establishing residence cannot be used as grounds for denial. In the cases you quoted, the IO-adjusted residency establishment date was less than 5 years before they applied.

The issue here is the breaking of continuous residence for that trip of over 1 year, and such a trip would allow use of the 4 years + 1 day rule.
Click to expand...

IO probably won't challenge establishing residence on 8/18/2004 as on the whole the 9/2-29 trip out of the country is short. You are allowed to 'land', get all the paperwork taken care of, then leave the country for a short period to ship your stuff to the US or take care of matters in your home country.
But either way, 5 yr LPR is not the item in question.
 
rick92 said:
I have a good one for you guys, Master Chess makers. Lawyers have different opinions about this one and I have no clue what's right or wrong.

Lets see what you guys can come up with. It might be easy or it might be difficult.
This person wants to apply for Citizenship ASAP. the question is when can she apply ???

Here is the DATA:

GREEN CARD 08/18/2004
EXP DATE 09/16/2014

EXIT USA 09/02/2004
ENTRY USA 09/29/2004
EXIT USA 04/09/2005 - REENTRY PERMIT APPROVED 2 YEARS
ENTRY USA 08/19/2006
EXIT USA 12/28/2007
ENTRY USA 01/27/2008
EXIT USA 05/31/2008
ENTRY USA 06/21/2008

:confused::confused::confused:
Click to expand...

I was approved under the 4 years + 1 day rule. I spent 11 months outside the USA and applied 4 years + 1 day after, but I had to provide a ton of evidence to convince them. So as others have said before, 8/20/2010 should be okay.

See the following links on my experience:

http://forums.immigration.com/showthread.php?297430-US-ties-for-CR-sufficient

http://forums.immigration.com/showthread.php?298144-Interview-experience-today

http://forums.immigration.com/showthread.php?298258-quot-4-Years-1-Day-quot-Filers-Tracker
 
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Thank you Guys.
What about the days she spent outside the US after 8/19/2006 as follows:

EXIT USA 12/28/2007 to ENTRY USA 01/27/2008 : 1 month
EXIT USA 05/31/2008 to ENTRY USA 06/21/2008: 3 weeks

That would be 8/20/2010 plus 51 days ?
 
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rick92 said:
Thank you Guys.
What about the days she spent outside the US after 8/19/2006 as follows:

EXIT USA 12/28/2007 to ENTRY USA 01/27/2008 : 1 month
EXIT USA 05/31/2008 to ENTRY USA 06/21/2008: 3 weeks

That would be 8/20/2010 plus 51 days ?
Click to expand...
They are relatively short trips that won't affect your continuous residence.
 
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