Another request for advice on continuous residence

J

JohnnyR

Registered Users (C)
I have been a legal permanent resident since May 7th 2005 and I am now looking at my travel history and wondering at what time I may have a realistic chance for naturalization. I don't mind taking the risk of paying the fee in vain, but I wouldn't want to go through the process if I had only a tiny approval chance.

My situation is as follows: I came to the US in May 2005 on an immigrant visa that I got as a follow-to-join benefit from my wife's adjustment of status in the US. Upon arrival, I moved in with my wife immediately. However, we have apartment leases with both our names on them in effect only since April 1st 2006. I didn't have a job in 2005 and 2006 and participated in an international research project (without pay, but expenses covered) for which I traveled to countries A through I (s. list below). I did not file an N-470 application at any time. My wife and I supported ourselves through my wife's salary. I took a (1-dollar a year) position in the US in 2007 and continued to work on the international research project. Based on this work, I have gotten a salaried position which I have held since 2008. My wife became a US citizen on December 4th 2009.

As of today (October 30th 2010), I have been physically present in the US for 1091 days and outside for 735 days over the last 5 years. I expect the pattern of the last 2 years with me staying mostly (80% or more of the time) in the US and being outside for some short trips to continue in the foreseeable future.

I am listing my trips outside the US below. For easier access to the data, I am also including graphic time line as an attachment (PDF file).

I am looking forward to reading your advice. Thank you very much in advance.

trips outside the US (dates given are travel days):
Jun 15th 2005 - Oct 15th 2005 country A, 121 days
Oct 23rd 2005 - Jan 17th 2006 country A, 85 days
Feb 17th 2006 - Apr 30th 2006 country A, 71 days
Jun 12th 2006 - Jul 13th 2006 country A, 30 days
Aug 28th 2006 - Oct 30th 2006 country A, 62 days
Nov 5th 2006 - Jan 20th 2007 countries A & B, 75 days
Feb 21st 2007 - Feb 24th 2007 country C, 2 days
Mar 9th 2007 - Mar 16th 2007 home country, countries D & E, 6 days
Mar 25th 2007 - May 26th 2007 countries A & B 61 days
Aug 28th 2007 - Oct 26th 2007 home country, countries A & D, 58 days
Oct 30th 2007 - Nov 21th 2007 home country, countries A, F, D, 21 days
Dec 3rd 2007 - Jan 26th 2008 countries A & G, 53 days
Mar 29th 2008 - Apr 5th 2008 country H, 6 days
May 11th 2008 - Jul 19th 2008 countries A, B, F, 68 days
Aug 24th 2008 - Sep 19th 2008 country A, 25 days
Nov 9th 2008 - Nov 16th 2008 country A, 6 days
Dec 15th 2008 - Dec 18th 2008 home country, 2 days
Mar 6th 2009 - Mar 15th 2009 country A, 8 days
Jun 26th 2009 - Jul 25th 2009 countries A & B, 28 days
Sep 8th 2009 - Sep 17th 2009 countries A & I, 8 days
Dec 24th 2009 - Jan 13th 2010 country A, 19 days
May 29th 2010 - Jun 13th 2010 country A, 14 days
Jul 27th 2010 - Aug 22th 2010 country A, 25 days
Sep 23th 2010 - Oct 3th 2010 country A, 9 days
 
Johnny,

Your continuous residence in the past five years has not been disrupted because you have no absence that even raises the rebuttable presumption and you meet the physical presence requirement also. Those are two different requirements. An N-470 might have been approved if your particular position and sponsoring "employer" met the requirements decribed in INA 316(b) but as it turns out it would have been a waste of effort in your case.

Provided that you have no other concerns or issues, you appear to be eligible to file an N-400 under INA sec. 316(a).

Arrests, convictions or probation can prevent or delay naturalization 5 or 3 years, 5 yrs as applicable to you. Active communist party membership can throw up a 10 year bar to naturalization from date of resignation from the party (there are exceptions for forced or obligatory membership, but not for party bosses). So as long as you are not plotting to overthrow the U.S. government or become a terrorist then you seem good to go.

Keep us posted.
 
Dear Joe,

thank you very much - that's what I wanted to hear :). I have no arrests, convictions, or probation, let alone communist party membership.

But I am worried that the time that I stayed in the US between immigrating and my first trip abroad (40 days) would be considered too short for having established residence. I am also worried that the first and the second trip (121+85 = 206 days in total with 8 days in-between) would be seen as a back-to-back trip greater than 180 days. Do you think that the fact that my wife stayed in our home in the US during that time would be sufficient to make these non-issues?

Thank you once again.
 
Johnny,

Your first trip does not come into the equation because it is outside your statutory period. Your statutory period is the 5 years immediately preceeding the filing of your N-400. Your N-400 is properly filed when it is received and accepted by USCIS. You have not actually mailed it yet and when you do it usually takes around 3 days to be legally filed. (The filing date can only get screwed up and delayed if the N-400 is rejected like for not being signed or has no payment/bounced check. It can be delayed due to a bounced checK as they will try to re-deposit it up to two times.)

Your 121 day trip gets further away the longer you wait to apply. It is not unusual for folks to basically touch based to secure the greencard before the visa expires and then return home to "wind things up" or "settle old business" before being able to move on with their new life in their new country. On top of that your pattern of trips show that they are getting shorter as time goes on. Anyone who makes a big deal out of it is being a jerk. If your naturalization interviewer gets an attitude about it then politely request to see the supervisor. (S)he will be a more experienced officer with more common sense from more years on the job.

If anyone challenges you on your early trips, you have already explained adequately that you were gaining experience which you parlayed into a job IN THE U.S. How could anyone give you grief over that?
 
JohnnyR said:
Based on this work, I have gotten a salaried position which I have held since 2008. My wife became a US citizen on December 4th 2009.

A
Click to expand...

Is this salaried position with a US company or are you a freelancer? Are all of your trips work related? Finally, does your wife accompany you on these trips?
 
Bobsmyth said:
Is this salaried position with a US company or are you a freelancer? Are all of your trips work related? Finally, does your wife accompany you on these trips?
Click to expand...

Dear Bob,

thank you very much for looking into this. I am a full-time state employee now. All my trips were for work/research. My wife has had a position with a company in the US for the entire time period and did not accompany me for any of the earlier (i.e., longer) research trips, but she did join/accompany me on some of the later, shorter trips.

Thank you once again,
Johnny
 
I don't see any issues with your eligibility. Your travel dates are too small to suggest break in continuous residence, you maintained a US abode with your wife, and your wife remained working in the US the entire time.
 
You have a good chance of being approved, but make sure you are prepared with evidence to defend your case if you get a hostile interviewer ... particularly that you kept your US house/apartment during the travel-heavy years of 2006 and 2007.
 
Jackolantern said:
... make sure you are prepared with evidence to defend your case if you get a hostile interviewer ... particularly that you kept your US house/apartment during the travel-heavy years of 2006 and 2007.
Click to expand...

Thank you for the good advice. My wife an I have an apartment lease that begins 09/2005, but I was officially added as a tenant only on April 1st 2006. Do you think that may be a problem (if I apply prior to April 1st 2011, that is)?
 
JohnnyR said:
Thank you for the good advice. My wife an I have an apartment lease that begins 09/2005, but I was officially added as a tenant only on April 1st 2006. Do you think that may be a problem (if I apply prior to April 1st 2011, that is)?
Click to expand...

Since none of your trips are over 180 days there shouldn't be any legal ground for doubts on the part of the USCIS that you maintained your residence in the U.S. Legally, they would have to prove that you broke your residence and you initially don't have to prove that you maintained it.

Besides, bank accounts, paying taxes, bills are all proofs of residence, apart from the lease.

If I were you, I would certainly file now.
 
JohnnyR said:
Thank you for the good advice. My wife an I have an apartment lease that begins 09/2005, but I was officially added as a tenant only on April 1st 2006. Do you think that may be a problem (if I apply prior to April 1st 2011, that is)?
Click to expand...

Even if your name was never on the lease it wouldn't be a problem. She's your wife, not some unrelated individual. It will be presumed* that her place of residence is and was also yours, unless there is evidence to indicate that you were separated for marital issues. And her presence in the US contributes favorably to the matter of your continuous residence.


*assuming you're not applying based on the 3-year rule, for which you have to deal with the burden of proof of marital union
 
Thank you very much for all the encouragement, all of your really made my day. I am wondering whether it would strengthen my case significantly if I waited until January 18th with filing my application? On that date, the 2 long trips (121 and 85 days with just 9 days in the US in-between) that I made early after becoming a legal permanent resident would both have slipped outside of the 5-year window and my days outside of the US would have gone down from the low 700s into the high 600s.
 
JohnnyR said:
Thank you very much for all the encouragement, all of your really made my day. I am wondering whether it would strengthen my case significantly if I waited until January 18th with filing my application? On that date, the 2 long trips (121 and 85 days with just 9 days in the US in-between) that I made early after becoming a legal permanent resident would both have slipped outside of the 5-year window and my days outside of the US would have gone down from the low 700s into the high 600s.
Click to expand...

Your case is strong. However, if there is no urgency for you to become citizen, January is only 2.5 months away. That is not too long in my opinion.
Even though it favors you, any scrutiny of this aspect with IO can put you in an evidence / documentation chain delaying your naturalization by 1-2 months anyway.
The only time you lose out is if the IO did not make this aspect an issue, but you can't predict that. Just don't commit a crime (speeding) these extra months you gain.
 
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