4 Year + 1 Day Rule : 90 days grace available?

[Radni]

A friend's N-400 is recently denied by the interviewing officer on the ground that his date of application was 15 days short of 4 years since his entry into US after 1 year stay away. He is a GC holder since August 1996.
In other words, he entered US on the 2 nd August ,2000 after staying away for 23 months, and then he has continuos stay in US since then exept two trips abroad of 2 months each. He filed N-400 on 17 th July 2004.
This is 4 years minus 15 days on his date of application.
I like to know
1. if the rule allows 4 years - 90 days or not for filing N-400.
2. Was the officer right in denying his N-400 on the ground that his application is filed 15 days before required minimums residency period in USA ?
3. Is the case worth filing an Appeal?

JoeF , Rahul, Others please advise.

 

[Radni]

Thanks JoeF for precise answer.

 

[lively]

Where is this rule stated ?

There is absolutely no "grace period" when the 4-year + 1 day rule is used.
A person using that rule can apply 4 years and 1 day after return. Applying even a day earlier will result in a denial, as it has in this case. The law is very clear about this. An appeal would be a waste of time and money.

JoeF, Our case was denied the same way, but I am at loss to find the four year and 1 day rule anywhere in the "immigration and naturalization guide".
Also my new petition is so going nowhere since I was denied first time. A lot of people who applied after me got interview letters and I haven't got even
fingerprints notice yet. I think USCIS have some long procedure for those whose case was denied once.

If I inquire from USCIS about my case, they say it is going at normal pace.
Any information from anybody who is in similar situation or know someone with similar situation is welcome.

 

[Radni]

Great work, JoeF !
Thanks.

 

[Radni]

Widthdrawl vs. Denial

lively,
Did you "withdraw" your ap[plication at hte interview ( as you might have been asked to do by the officer ) or was it "denied" ?
In my friend's case , he was advised by the officer to withdraw the application, and so he did. Now he is applying again afresh.
JoeF, would he stand a better chance of smooth processing/ approval now that his N-400 was withdrawn and not denied? Technically, in the withdrawl case, would they keep the copy on record? Or is it simply deleted from his INS record file?

 

[lively]

There is a side-box in the "guide".
The regulatory definition is in 8 CFR 316.5(c)(1)(ii):
"(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with Sec. 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 Sec. 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. (Amended 9/24/93; 58 FR 49913) "

Thanks JoeF, but do you think that my old petition is effecting my new N-400 petition. I have not even recieved FP notice 4 months after applying. People who applied about two weeks after me have got their interviews already.

 

[lively]

lively,
Did you "withdraw" your ap[plication at hte interview ( as you might have been asked to do by the officer ) or was it "denied" ?
In my friend's case , he was advised by the officer to withdraw the application, and so he did. Now he is applying again afresh.
JoeF, would he stand a better chance of smooth processing/ approval now that his N-400 was withdrawn and not denied? Technically, in the withdrawl case, would they keep the copy on record? Or is it simply deleted from his INS record file?

No the officer never gave the option. He said he is not clear about the law and will let us know the decision after cosulting with his senior. We didn't hear anything from them for 5 months after interview. After getting tired of waiting I filed an inquiry and after that I got the deniel notice in two weeks.
I hope they deal better with you since you, " withdraw".

Also I hope they make their language in the "guide" a little bit more clear. Not every goes as far as to dig out the guiding laws. Mere mortals just read the naturalization guide, which does not say what JoeF qouted.

 

[lively]

lively,
Did you "withdraw" your ap[plication at hte interview ( as you might have been asked to do by the officer ) or was it "denied" ?
In my friend's case , he was advised by the officer to withdraw the application, and so he did. Now he is applying again afresh.
JoeF, would he stand a better chance of smooth processing/ approval now that his N-400 was withdrawn and not denied? Technically, in the withdrawl case, would they keep the copy on record? Or is it simply deleted from his INS record file?

No, the offiecer never gave the option. The officer was not clear about the law and he said he will send the decision later after discussing the case with a senior. After five months of the interview I filed an inquiry and got the denial decision in two weeks.I hope they deal with you better since you "withdraw". Also I like to add that they will probably like to check the background much more thourougly for, however lived outside US so long after getting GC.

Also I wish they make the "guide" more clear on this issue. Mere mortals like me do not go and dig the guiding laws like JoeF qouted. The guide definatly gives you a blank on this one. There is no side box that stops you from using 3 months grace for such cases.