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.
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.