Rejected for lack of continous residence: Should I contest it?

[AnoopTripathi]

I got green card through my company in 2001. My wife got green card as dependent.
I got citizenship on Jan 16, 2007.
My wife had taken the 2 year advance permit and was out of the country but visited once every year. She finally came back in July 2007 and has lived here since then.

I applied for her citizenship on Jan 26, 2010.
Her application was rejected mentioning lack of continous residence.

I had applied using the marriage to citizenship clause.

But isn't she clear for the 3 year residency?
Is she applicable to use the marriage clause?
Should I contest the decision?

Any guidance would be helpful?

 

[Bobsmyth]

Was she out of the country when she applied? If she was out of US between Jan 26 2007-July 2007, what evidence did she provide at interview to prove she didn't break continuous residency?

 

[Al Southner]

I got green card through my company in 2001. My wife got green card as dependent.
I got citizenship on Jan 16, 2007.
My wife had taken the 2 year advance permit and was out of the country but visited once every year. She finally came back in July 2007 and has lived here since then.

I applied for her citizenship on Jan 26, 2010.
Her application was rejected mentioning lack of continous residence.

I had applied using the marriage to citizenship clause.

But isn't she clear for the 3 year residency?
Is she applicable to use the marriage clause?
Should I contest the decision?

Any guidance would be helpful?

What evidence do you have to prove that she didn't break continuous residence? Was she employed during her around-the-world trips? Remember that a green card is issued for people to live in the US, living abroad with it comes with such results, denial of N400 because USCIS is of the view that you are trying to mock their requirements.

She is eligible to apply under the marriage rule, cause your 3 years anniversary was on January 16th, 2010. You can contest any decision from USCIS, provide you are assured a victory in your quest. If you just want to vent at them, throwing money at them isn't effective way of doing it. See this thread which we saw on this board about 11 months ago.

http://forums.immigration.com/showt...to-lack-of-continuous-residence.-Short-notice.

 

[Al Southner]

Was she out of the country when she applied? If she was out of US between Jan 26 2007-July 2007, what evidence did she provide at interview to prove she didn't break continuous residency?

I think this 7 months trip is what did the damage. He's eager to appeal, but I am not sure of any evidence to prove USCIS was wrong in their denial. My sense is that USCIS figured that she chooses NOT to file under the 5 years rule, because of her extensive travel abroad and she's trying to use the 3 year rule to her advantage to mask her travel history, which is what maybe brought about this denial.

 

[Jackolantern]

My sense is that USCIS figured that she chooses NOT to file under the 5 years rule, because of her extensive travel abroad and she's trying to use the 3 year rule to her advantage to mask her travel history, which is what maybe brought about this denial.

They can't deny it on that basis. It is entirely within the applicants rights to choose the 3 year option if there are disqualifying trips between 3 and 5 years ago.

Plain and simple, the denial was for the long trip that ended in July 2007, which was well within the 3-year window when she applied, and apparently was over 6 months long (unless the OP tells us information to indicate otherwise).

She can successfully reapply now with the 3 year rule, as July 2007 is more than 3 years ago.

 

[Al Southner]

They can't deny it on that basis. It is entirely within the applicants rights to choose the 3 year option if there are disqualifying trips between 3 and 5 years ago. /QUOTE]

Jack,

Since USCIS officials are people too, the officer can use this excuse to nail him for this particular issues, but hide behind failure to demonstrate continuous residence. I am certain that had he waited till July 2010, they would have approved her case without any problems. He can apply now and avoid a costly endeavor which he might NOT win. When she applied, she was in the US for 29 months, and has she waited till July 2010 for a full 3 years of continuous residence, they would have been successful.

 

[sanjoseaug20]

From what I see, the OP's wife should not be denied for continuous residency.
However, I can see one scenario which will favor the officer's side.
#1. When did they get married?
#2. How much time did the wife spend in US after she got married and before the 2007 trip?
There was a case a while back where the officer contended that the applicant did not spend enough time in US to establish residency, and hence counted residency in US only after the applicant returned from all the long trips.
I want to make sure that is not the case here.
Q1 is to check the statutory dates from which marriage eligibility counts.
Q2 is to check the likely date from which "residency" starts.

 

[Jackolantern]

From what I see, the OP's wife should not be denied for continuous residency.

Why not? She applied in Jan. 2010, but had a trip of over 6 months ending on July 2007.

Perhaps she could have provided more evidence to overcome the presumption of breaking residence ... but we don't know what was provided or if the OP stayed in the US while she was gone. Rather than bringing more evidence to challenge the denial, the chances of success are much better if she reapplies, with that last long trip having moved outside the 3 year window.

#1. When did they get married?

The OP says he got an employment-based GC in 2001 and his wife got a green card as his dependent. So they have been married for 9 years or more, including over 3 years since he got citizenship in Jan 2007.

 

[sanjoseaug20]

Why not? She applied in Jan. 2010, but had a trip of over 6 months ending on July 2007.

You are right. Also, I think the details are sketchy because the wife applied in Jan and it is after 8-9 months they are denied. Unless the file went into a hole, I suspect some discussions / RFE were going on.

My reason to expect approval is that despite having a long trip, about 2.5 years out of 3 statutory years seem to be clean. IOs are likely to look kindly on a case when the problems are in the past. But we do not know what else went on in this 9 month process.

At this time, filing again seems like a good choice.

 

[AnoopTripathi]

Clarifications

1) For 3 year continous residence rule, you are eligibile after 2 years 1 day. So after entering on July 07, 2007 wasn't she eligible on Jan 07, 2010 to file?
2) 3 years to have passed by for marriage ( it is over 15 years)
3) 3 years since the spouse became a citizen. Qualifies Jan 15th, 2010.
4) The continous residence was broken several times between 2004 and 2007 but she is not using any of that period to claim meeting any eligibility criteria.
5) She had valid re-entry permit, so her green card was always valid.
6) No RFEs came. File in Jan, fingerprinting in March, Interview in May. Marked as decision pending. End of July raised a request to find out what is gonig on? Received a mailed letter in October stating rejection.
7) Even in the years she was gone, always filed taxes as resident.
8) She did work while she was in India between 2004-2007
9) She had sold house in 2004 before leaving and now owns a house since 2008. After renting from July 2007 to 2008.

 

[Huracan]

I wouldn't bother. She should be able to reapply right away based on her return date. I got this from the guide to naturalization:

"If you return within 2 years, some of your time out of the country does count. In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your continuous residence requirement."

If she was more than 2 years out then it means she couldn't apply with the 2 and 1 day rule, but perhaps the 3 minus 90 days. Anyway, moot point. I wouldn't contest it, I would just reapply now it is going to be faster and less of a headache.

 

[Jackolantern]

1) For 3 year continous residence rule, you are eligibile after 2 years 1 day.

Good point, but even the 2 years + 1 day rule still requires providing proof of ties to the US during that long trip at the beginning of the 3 year window. Similarly, the 4 years + 1 day rule requires proof of ties to the US during the long absence at the beginning of the 5 year window.

8) She did work while she was in India between 2004-2007

That's bad for her case if the work in 2007 was within the 3 year window (i.e. after Jan 26, 2007).

9) She had sold house in 2004 before leaving and now owns a house since 2008. After renting from July 2007 to 2008.

Also bad, because she didn't own or rent anything from Jan 2007 to July 2007.

Perhaps they didn't give her enough opportunity to present evidence to support her continuous residence, and maybe she could win the appeal upon presenting it ... but why bother to spend money on the appeal which has a 50/50 chance at best, when she can immediately reapply and be 99% sure of success?

 

[sanjoseaug20]

Agree with Jack, A) working abroad and B) not maintaining a residence while being abroad are the deal breakers. Apply afresh.