Citizenship help needed

rsanford

Registered Users (C)
Hello to all. My wife obtained her permanent residency in May – 06. She flew over to the Philippines on 10-29-08 with a return on 11-11-08. She intended to help mainly her brother try to get a business started with her providing the guidance and money and the brother and other siblings to do the work. Things did not proceed as smoothly and quickly as possible (yeah I know- who would have thought that in the Philippines) and we decided for her to stay longer, having spent so much on the travel and into the business already. Later on her town was hit by a Cat. 3 hurricane with further travel delays and delays to stay and help the family rebuild. She asked me was it ok to stay that long and I did a Google search and the info I saw was as long as it was less than 1 year, she was ok (I realize now that my research was woefully incomplete). We filed in June of 09 for citizenship and she had her interview in Sept. 09 and after much of the run around and finally having to threaten a lawsuit, she was denied in June of 2010 for the trip having exceeded six months and them determining she had abandoned her residency (despite much evidence to the contrary). By this time I was so tired of dealing with these people, we decided not to appeal and just refile when she had gotten far enough away from the disqualifying trip.

So now my question is this. Here is the regulation that applies.
§ 316.5 Residence in the United States.

(c) Disruption of continuity of residence—(1) Absence from the United States—(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under §316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence:

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

(C) The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

(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 date of the applicant's return to the United States to resume permanent residence."

Here is my question. What does the word paragraph refer to? Does the language in quotes (added by me) apply to both (i) trips between 6 months to 1 year and (ii) trips over 1 year or only to just trips over 1 year? It would make no sense for it to apply only to trips over 1 year, in other words punishing those who travelled less than 1 year more than those who travelled over 1 year. It would be clearer if the language was set out more clearly to apply to both (i) and (ii). She is almost 2 years past the disqualifying trip and the above quoted language seems to say she can refile then. After being burned on the first application, I am really reluctant to spend the time and money on a new application just to have it denied for being filed too early. I made an appointment and went to the local office to try to get a straight answer but the hearing office we spoke to said yes, no, maybe and referred us to the grid thing on their website, which did not address this issue. I am hoping that somebody with specific knowledge (attorneys, ex judges, etc.) might know the answer. Thanks so much for the help.
 
Here is my question. What does the word paragraph refer to? Does the language in quotes (added by me) apply to both (i) trips between 6 months to 1 year and (ii) trips over 1 year or only to just trips over 1 year? It would make no sense for it to apply only to trips over 1 year, in other words punishing those who travelled less than 1 year more than those who travelled over 1 year.
This has been a topic of much dispute and multiple interpretations.

However, the way they tend to handle it in practice has some more logic than the apparent punishing of those who travelled less than one year. That is because when somebody uses the 4 year and 1 day rule after a trip of 1 year or more, they often make them have to produce evidence of ties to the US during the last year of that trip (or the portion of that trip that is within the past 5 years).

Somebody who took a trip of between 6 months and a year also would have to provide such evidence -- but they have the advantage in that if they produce sufficient evidence, they can overcome the presumption of breaking residence and not have to wait 4 years and a day (or 2 years and a day for marriage-based).

You must be a US citizen, since your wife applied with the 3-year rule in 2009. When did she return to the US after that long trip? If she applies 3 years minus 90 days after the end of that long trip, she will be free and clear of that trip affecting her, without having to worry about the nuances of that 2 year and 1 day rule.

It appears that your wife applied for citizenship in 2009 very shortly after returning to the US from that long absence. That is one of the worst times to apply, because it creates the appearance that one has already relocated abroad for good, and is just applying for citizenship as a final step before leaving the US permanently. So when it comes to situations involving discretionary decisions such as trips of over 6 months, the interviewer will tend to lean towards an unfavorable decision if the citizenship application was filed very soon after the long trip.
 
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Thanks for the reply. I am a US citizen and we did apply shortly after her return and kind of got blindsided. A followup question. You mentioned applying 3 years minus 90 days from the return. Is this a black and white situation. I had seen about that applying 3 months early and asked the same hearing officer about that and again her answer was yes, no, maybe. Thanks again.
 
Thanks for the reply. I am a US citizen and we did apply shortly after her return and kind of got blindsided. A followup question. You mentioned applying 3 years minus 90 days from the return. Is this a black and white situation.
Yes, a person applying with the 3 year marriage-based rule is allowed to apply when it is 90 days before completing 3 years of continuous residence (provided other conditions such as good moral character, living in the state for 3 months etc. have been met).

However, it is risky to apply exactly on day 90, because sometimes they will miscount by a day or two and reject the application without an interview, claiming it was submitted too early.

I had seen about that applying 3 months early and asked the same hearing officer about that and again her answer was yes, no, maybe. Thanks again.
Asking USCIS officers about what-if, when-can-I, how-can-I scenarios is a recipe for disaster. They are notorious for giving ambiguous or incomplete answers, or even dangerously wrong answers that lead people into trouble. If you ask two of them for the time of day, you'll get three different answers. The only thing they should be asked is the status of an existing case.
 
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Thanks again.

When exactly did your wife come back to the U.S. in 2009 from that trip to the Philippines? One can deduce from your post that she must have already been back in the U.S. in June 2009, since that is when she filed N-400. But when did she return?
 
Paragraph refers to (c), so the "remedy" applies to (i) and (ii).

CFR Paragraph structure of a section.

level 1 (a), (b), (c), etc.
level 2 (1), (2), (3), etc.
level 3 (i), (ii), (iii), etc.
level 4 (A), (B), (C), etc.
level 5 (1), (2), (3), etc.
level 6 (i), (ii), (iii), etc.
 
She returned 5-29-09 with no trips since then.

OK, I see.

You basically have several options:

1) Your wife can apply at any time (even now) and try to convince the IO adjudicating the application that her trip to Philippines did not break continuous residency. The denial of her application back in 2009 technically does not prejudice against her re-filing and trying to make the same argument again. A new N-400 application would be considered from scratch. She may be able to provide more supporting document this time around. This is a fairly risky option and I personally do not recommend it. Still, it is a possibility.

2) The safest option is to apply 90 days (actually better something like 87-86 days, to be on the safe side) prior to the 3-d year anniversary of her return from the Philippines trip. That is, applying in early March of 2012. This is the safest option as the entire Philippines trip becomes a non-issue.

3) She could try to invoke the 2 years plus one day rule and apply after 2 years plus one day of her return from the Philippines trip, meaning applying in early June 2011.

The situation with applicability of the 2 years plus one day rule to trips that were longer than 6 months but less than a year is pretty ambiguous. There is a rather old (1993) letter by an INS official to a lawyer for an applicant expressing the opinion that the 2 years plus one day rule does apply to such trips:
http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm

It is not clear to what extent USCIS currently considers the position expressed in this letter correct and binding. The current text of the Adjudicator's Field Manual does not mention anything about the applicability of the 2 years plus one day rule (or 4 years plus one day rule, for non marriage-based cases) to trips under a year long.
The relevant portion there reads:

The application of a person who is subject to the continuous residence requirement but has been continuously absent for a year or more without qualifying for the exception benefits of section 316(b), or making a timely application for such benefits, must be denied for failure to meet the continuous residence requirement of section 316(a). In the case of a denied applicant who is subject to the five-year continuous residence period, this means that he or she becomes eligible to overcome that impediment four years and one day following the date of return to the United States to resume permanent residence. If the case of an ineligible applicant who is subject to the three-year statutory residence period, eligibility to overcome the impediment and to file a new application for naturalization will occur two years and one day following the date of return to resume permanent residence. (See to 8 CFR 316.5(c)(1)(ii) and 8 CFR 316.5(d) .)

See

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22483.html#0-0-0-731

My personal opinion (although I should stress that there are some other members of this forum who hold the opposite opinion) is that the 2 year plus one day rule is not applicable to trips below a year in duration. There was a thread about this topic a while ago:
http://forums.immigration.com/showt...dence-more-than-6-months-but-less-than-a-year

I think that there is some risk involved in trying to apply in June 2011. The problem is that we do not have any direct reports here in this forum of anyone trying to use (either successfully or unsuccessfully) the 2yr+1day/4yr+1day rule for trips below a year in duration. I did a bit of google searching but could not find anyone reporting such experiences elsewhere either. If your wife does apply in June 2011, she could be an interesting test case to see how the USCIS treats this issue now, but you have to decide for yourself if you want to take the risk.
 
H We filed in June of 09 for citizenship and she had her interview in Sept. 09 and after much of the run around and finally having to threaten a lawsuit, she was denied in June of 2010 for the trip having exceeded six months and them determining she had abandoned her residency (despite much evidence to the contrary)..

What evidence did she present?
 
There is nothing ambiguous about the remedy or the reason for denial of her case.

INS Counsel issued an opinion in 1993, on the applicability of the remedy in 8 CFR 316.5(c)(1)(ii) to the absences in (i). The question has been settled for 18 years.

She was abroad for the express purpose of ESTABLISHING A FAMILY BUSINESS WITH HER MONEY IN A FOREIGN COUNTRY. That is the same as working abroad and trying to (re-)establish oneself in a foreign (or in her case, "home") country. It is counter to the rebuttal evidence and an affirmative step.

When one uses the remedy they DO NOT have to show ties during the absence. That is a paranoid misunderstanding. One either overcomes the presumption OR waits out the remedial period, NOT BOTH.

Lastly, use of the remedy is prohibited ONLY when its use results in a period of LPR status that is under the statutory minimum 4 (or 2) years and 9 months as afforded by INA 334(a) when applying under INA 316(a) or 319(a) [the only sections to which 334(a) applies].
 
There is nothing ambiguous about the remedy or the reason for denial of her case.



She was abroad for the express purpose of ESTABLISHING A FAMILY BUSINESS WITH HER MONEY IN A FOREIGN COUNTRY. .

That's assuming she disclosed this at interview.
 
SEE: Appendix 74-13 Continuity of Residence for Naturalization Purposes. in the Adjudicator's Field manual at www.uscis.gov on the laws tab.

The 1993 INS correspondence letter in appendix 74-13 of AFM has been brought up many times in the past before as well as it's meaning. Specifically, the letter makes reference to 8 CFR 316.5(c) (1) (ii). However, "in this paragraph" seems to refers to (ii) only since each section of the law is considered a paragraph.

For example,



Level 1 (a), (b), (c), etc. § 303.1(a)
Level 2 (1), (2), (3), etc. § 303.1(a)(1)
Level 3 (i), (ii), (iii), etc. § 303.1(a)(1)(i)
Level 4 (A), (B), (C), etc. § 303.1(a)(1)(i)(A)
Level 5 (1), (2), (3), etc. § 303.1(a)(1)(i)(A)(1)
Level 6 (i), (ii), (iii), etc. § 303.1(a)(1)(i)(A)(1)(i)

http://www.archives.gov/federal-register/tutorial/tutorial_060.pdf

Each level is considered a paragraph, so the wording in 8 CFR 316.5(c) (1) (ii) to "in this paragraph" suggests it only refers to the immediate paragraph (ii) instead of the upper level paragraph (c).
 
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Paragraph refers to (c), so the "remedy" applies to (i) and (ii).

CFR Paragraph structure of a section.

level 1 (a), (b), (c), etc.
level 2 (1), (2), (3), etc.
level 3 (i), (ii), (iii), etc.
level 4 (A), (B), (C), etc.
level 5 (1), (2), (3), etc.
level 6 (i), (ii), (iii), etc.

Each level is considered a paragraph of its own, so how do you explain that "this paragraph" refers to the upper most level paragraph (c) instead of the immediate paragraph (ii)?
 
Pose your question on the structure of the CFR to the people who publish it. A grammatical paragraph and a statutory or regulatory paragraph are not the same thing.

While you are at it get definitions of: title, chapter, subchapter, part, subpart, section, subsection, paragraph, subparagraph, clause, subclause, and sentence.

For questions or comments regarding e-CFR editorial content, features, or design, email ecfr@nara.gov
 
Pose your question on the structure of the CFR to the people who publish it. A grammatical paragraph and a statutory or regulatory paragraph are not the same thing.

While you are at it get definitions of: title, chapter, subchapter, part, subpart, section, subsection, paragraph, subparagraph, clause, subclause, and sentence.

For questions or comments regarding e-CFR editorial content, features, or design, email ecfr@nara.gov

The link I provided is from NARA and only distinguishes between title, chapter, part, section, and paragraph (in that order) . See slide page 5.

Also, the link provides the regulatory structure of the CFR. See slide page 6.


http://www.archives.gov/federal-register/tutorial/tutorial_060.pdf
 
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