Am I eligible to apply for citizenship?

M

mrkbds

New Member
Currently, I am living in USA on Green Card issued since 22 May 2003.I am planning to apply for citizenship after 22 Feb. 2008.

In reference to the citizenship application Form N-400 and associated Naturalization Guide (476), I am confused with the definition of continuous residence.

At one point in eligibility table USCIS refers

” If you leave the United States for more than 6 months, but less than 1 year, you have broken or disrupted you continuous residence unless you can prove otherwise”

According to Naturalization eligibility worksheet in the Naturalization guide,

I am eligible to apply for citizenship, since I never was out of United States for more than a year after receiving my Permanent Resident Card (Green Card). USCIS quotes in point 5 in the eligibility worksheet “During the last five years (or the last three if I qualify under Attachment A), I have not taken a trip out of the United States that lasted one year or more”

Here is a chart that says how many days I was out of USA:
Date left USA Date return to USA Total days out of USA
21 Jun03 15 may 04 329(10 month 24 days)
16 July 04 11 Jan 05 179 ( 5 month 26 days)
26 dec05 16 Jan 06 21
25 Nov 07 6 Jan 08 42

After being green card holder I have to visit India couple of times to finish my dental studies and mandatory internship with Government Dental College in Gujarat (India).

I have been outside USA more then 6 months for only one instance but was less than a year (11 months).

My question is am I eligible to apply for citizenship?

Or I have broken or disrupted my continuous residence status.
 
Based on what I know, since you have a stay over 6 months, it is broken.

Did you have a house/apt here during your stay in India? Were you paying bills here etc? Something that can prove that though you had a long trip, you were still US resident? That may help.

You may benefit from hiring an attorney for your case.
Good luck !!!
 
The 5 year clock for your citizenship has re-started after you have broken your continious residency in your trip from June 03 to May 04. So the 5 year clock starts on May'04.

In addition, you have to substract the 5 months 26 days that you have been out in addition to any other trips after May 04.

So, NO; you are not elegible to apply for citizenship this february 08.

Unless, you have paid U.S. taxes, pay rent and bills, and have wive or sons in the states for the time you were out of the US, you are not elegible for this february.

Hiring an attorney would be a waste of time. You broke the continious residency so you have to count over after you stayed out of the US for more than 6months.

Good luck,
 
Although an absence of more than 6 month breaks continuous residency, you can still apply in February providing that you supply evidence (ex: tax records, family in US, US business, foreign assignment with US company) that show that it was not your intention of abandoning continuous residency in the US. I don't know how USCIS views foreign schooling for this purpose, but I would think it would go against you unless it was a US school.
 
mrkbds said:
I have been outside USA more then 6 months for only one instance but was less than a year (11 months).

My question is am I eligible to apply for citizenship?
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Maybe, but you'll face a very difficult time proving you didn't break residence.

mrkbds said:
Or I have broken or disrupted my continuous residence status.
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Probably, because not only were you absent for 10 straight months, but you almost immediately (just 1 month later) went away for nearly 6 months.

Whilst USCIS has a history of looking favorably on long-ish periods of foreign study, the catch in your case, is that you made it really obvious your intent was to be absent from Jun 2003 thru Jan 2005. Unfortunately USCIS really dislikes people trying to game the system by making short "visits" to the US in the hope of preserving residence.

Realistically, the best case I could see, is if you can persuade USCIS that you qualified for the 4yr+1day rule in May 2004. That should put your N-400 eligibility date around May 2008.
 
Hey MRKBDS,

On a different note, do you know that after you get your US Citizenship, you won't be able to practice Dentistry in India? You may have done your homework but just making sure... Looks like you broke your 6 months residency requirement and worked hard to get that BDS degree. You may have plans of pursuing the career here but.... The reason I know this is because my buddy whose wife is a BDS from India hasn't applied for US citizenship yet for this reason. He applied a few monhs ago though.
 
LegalAlien2 said:
Hey MRKBDS,

On a different note, do you know that after you get your US Citizenship, you won't be able to practice Dentistry in India? You may have done your homework but just making sure... Looks like you broke your 6 months residency requirement and worked hard to get that BDS degree. You may have plans of pursuing the career here but.... The reason I know this is because my buddy whose wife is a BDS from India hasn't applied for US citizenship yet for this reason. He applied a few monhs ago though.
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Just curious, if she applies for OCI and gets it, why whould she not be allowed to practice dentistry (As long as she has a valid license in India) OCI rules specifcally says that OCI can do anything in India except Govt jobs and own agri land. There is no mention of not able to work as doctor or anything. If you have the license (Which she will if she has BDS from India) she will be able to practice in India.
 
That's what I asked my friend as you would think having an OCI enables you to do almost any job. I don't know all the details but what I know is only Indian citizens can practice dentistry in India. I wonder if it applies to the Doctors too :confused:
 
ccordova624 said:
The 5 year clock for your citizenship has re-started after you have broken your continious residency in your trip from June 03 to May 04. So the 5 year clock starts on May'04.

In addition, you have to substract the 5 months 26 days that you have been out in addition to any other trips after May 04.

So, NO; you are not elegible to apply for citizenship this february 08.

Unless, you have paid U.S. taxes, pay rent and bills, and have wive or sons in the states for the time you were out of the US, you are not elegible for this february.

Hiring an attorney would be a waste of time. You broke the continious residency so you have to count over after you stayed out of the US for more than 6months.

Good luck,
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Correct me if I am wrong, but I believe the clock restarts when you have been outside the US for more than 1 year and are returning with a reentry permit. Any absence of six months to a year is still allowed but you can provide otherwise. Any absence of one year or more definitely breaks the contiuous residence.
 
mrkbds said:
Hi boatbod,
i am not aware of 4yr +1 day rule. Could you please explain it?
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The simple explanation is that if you break continuous residence, you may be eligible to apply for N-400 after 4yrs + 1day, rather than 5yrs - 90 days.

Strictly speaking, the rules simply you'd only qualify for this benefit if you break residence with an absence of longer than 1 year, however the USCIS memo in the thread below suggests otherwise.

http://www.immigrationportal.com/showthread.php?t=254465
 
vdostoi1 said:
Correct me if I am wrong, but I believe the clock restarts when you have been outside the US for more than 1 year and are returning with a reentry permit. Any absence of six months to a year is still allowed but you can provide otherwise. Any absence of one year or more definitely breaks the contiuous residence.
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Sorry, but thats not correct.

A single absence less than 6 months is usually ok, except if you are trying to stack multiple single trips back-to-back to get around the 6 month restriction.

A single absence lasting between 6 months to less than 1 year is presumed to break continuous residence, unless the applicant can prove otherwise or is the beneficiary of an N-470.

Any absence over 1 year absolutely breaks continuous residence unless the applicant is a beneficiary of an N-470

Reentry permits are irrelevant in the context of preserving residence. The only document that can do this is an N-470, and they have some pretty strict eligibility criteria.
 
boatbod said:
The simple explanation is that if you break continuous residence, you may be eligible to apply for N-400 after 4yrs + 1day, rather than 5yrs - 90 days.

Strictly speaking, the rules simply you'd only qualify for this benefit if you break residence with an absence of longer than 1 year, however the USCIS memo in the thread below suggests otherwise.

http://www.immigrationportal.com/showthread.php?t=254465
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Reading that 1993 letter of inquiry, the respondent refers to 8 CFR 316.5(c)(1)(ii) which has to do with absences of more than 1 year, although the case in question related to travel between 6 months and less than 1 year. Therefore, I think the respondent misinterpreted the law and provided an incorrect response.
 
boatbod said:
A single absence lasting between 6 months to less than 1 year is presumed to break continuous residence, unless the applicant can prove otherwise or is the beneficiary of an N-470.
.
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What source did you use to determine that a N-470 can be used for single absence between 6 months and less than 1 year?. From what I read, the N-470 is only used for absences greater than 1 year.
 
USCIS' N-470 Instructions makes no mention of a minimum time period for validity. Wouldn't it seem a little odd if you could preserve your residence for a trip lasting 1.5 years, but not one lasting 9 months? Would you mind citing the reference that makes you think otherwise.
 
Bobsmyth said:
Reading that 1993 letter of inquiry, the respondent refers to 8 CFR 316.5(c)(1)(ii) which has to do with absences of more than 1 year, although the case in question related to travel between 6 months and less than 1 year. Therefore, I think the respondent misinterpreted the law and provided an incorrect response.
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Maybe so, but its cited in their handbook, so it set precedence for how to adjudicate similar cases.
 
boatbod said:
Maybe so, but its cited in their handbook, so it set precedence for how to adjudicate similar cases.
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I would argue that point based on the fact that the respondent cited the published rule for travel greater than 1 year rather than less than 1 year and therefore gave an incorrect response. A misinterpretation of a law on a 1993 memo would not stand up in court. Have you heard or read of any cases that were adjudicated this way?
 
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boatbod said:
USCIS' N-470 Instructions makes no mention of a minimum time period for validity. Wouldn't it seem a little odd if you could preserve your residence for a trip lasting 1.5 years, but not one lasting 9 months? Would you mind citing the reference that makes you think otherwise.
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The way I interpret it is that the N-470 is only used for trips greater than 1 year and you worked on a foreign assignment with a US firm. Trips greater than 1 year automatically break continuous residency , whereas trips between 6 months and 1 year only presume break in continuous residency (unless you can prove otherwise with supporting documents).

This is from the N-470 instructions on the USCIS form:

You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes.

That tells me it's only for when you leave the country for 1 year or more and wish to preserve your continuous residency requirement and you were working for a US firm. Without the N-470, you would break continuous residency, and only the last 364 days outside the country count towards residency (providing you return within 2 years with a re-entry permit), hence the 4 years + 1 day filing rule. It's best to look at scenarios when dealing with the issue of continuous residency and the use of the N-470.

Scenario
1) Altraj gets his GC in Jan 2001 and wishes to apply for naturalization. In Jan 2003 he leaves the US to go care for his dying mom in India for 15 months and returns to the US with a re-entry permit afterwards. He has therefore broken continuous requirement. However his last 364 days outside the country count for residency. He is therefore only allowed to apply for naturalization 4 years + 1 day after his return to the US (April 2008).

2) Altraj gets his GC in Jan 2001 and wishes to apply for naturalization. In Jan 2003 he gets a foreign assignment in India with a US firm for 15 months in and returns to US with a re-entry permit and a pre-approved N-470. Since he filled out the N-470, he has preserved his continuous residency requirement and is therefore allowed to apply for naturalization in Oct 2005 (5 years - 90 days from when he obtained GC). Without the N-470 he would have had to wait 4 years + 1 day from his return to apply. (April 2008)

3) Altraj gets his GC in Jan 2001 and wishes to apply for naturalization. In Jan 2003 he goes to visit his dying mom in India for 8 months, but left his wife and kids back in the US along with his US business. He is presumed to have broken continuous residency requirement but is able to provide proof of his intent (family members at home, US business) and therefore is able to keep his continuous residency when applying for naturalization in October 2005.

4) Altraj gets his GC in Jan 2001 and wishes to apply for naturalization.
In Jan 2003 he quits his US job, sells his house and decides to travel to India for 8 months with his family for a much needed vacation. He applies for naturalization in October 2005, however he is unable to provide evidence of his intent during his 8 months away and therefore is presumed to have broken continuous residency requirement and his application is subsequently denied. He can then reapply for naturalization 5 year -90 days after his return to US. (June 2008).
 
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N-470 is for trips longer then 1 year but not any longer then 2 years total. I asked about N-470 before going overseas as a dependant with the military. They told me not to waste my money on an N-470 because it was not valid for anything longer then 2 years and military orders are a minimum of 3 years. I ended up staying 6 years overseas because my husband had 2 consecutive military tours. As proof for not breaking residency I had to submit tax returns of the last 5 years and copies of all orders, nothing else. However this case sounds different, because it is in fact under 2 years. In my opinion trips under 6 months not a problem. 6-12 months you better have a good reason and can proof you did not abandon the US via tax forms, rent, bank accounts. 12-24 months definitely apply for a N-470. Anything longer then that is usually only for Government, Military or overseas US Employer. Keep filing your US taxes religiously every year! And talk to USCIS before leaving the country. As I said in my case it was no problem, but after returning to the US I was still required to fulfill 18 months actual physical residence and 3 months in same State before I could file.
 
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I agree with jojo72. The only clarification I would add is that you must be employed with US firm or government or member of clergy or missionary when filing for N-470. Leaving for more than 1 year but less than 2 years does not in itself make you eligible for N-470.
 
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