4 years and 1 day rule !!!

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cbamidimarri

Registered Users (C)
I am a Permanat Resident Since 19-Aug-2004, but I was away in India for about 11.5 months - March 21, 2005 to March 11, 2006. As I have broken the continuous residence requirements in year 2005, when can i file my N400.

Do I have to wait for 5 years from March 11,2006 or can i use 4 years and 1 day rule and file my N400 anytime on or after MArch 12, 2010?

Please reply :)
 
In your case, the 4 years + 1 day rule can not be used and you would need to wait five years starting from 03-11-2006

If you stayed two more weeks in India and completed one year of absence, then you could have used that rule.

Don't ask me why? But it seems CIS rewards folks whose absence exceeds one year by letting them include the year of absence minus one day in the statutory period.

Your absence was between 6 months and one year. Therefore, you have to wait five years. You may not use the 90 day rule to file early either.
 
You could try to file after 4yrs and 1 day but you need to provide evidence that you kept sufficient financial/residential/family ties to the US and you intended to return.
 
Hey man

Thanks a lot for your reply.

During that period of my absence, i did not mantian an apartment / residence in USA, but i kept all my bank accounts / Trading accounts open.

Can i go ahead and try 4 year 1 day rule in this case?

Thanks again for your time and help
Babu
 
The language of 8 CFR 316.5(c)(1)(ii) states that the 4 years plus 1 day rule can only be used for absences from the US of more than 1 year.
 
Bobsmyth said:
The language of 8 CFR 316.5(c)(1)(ii) states that the 4 years plus 1 day rule can only be used for absences from the US of more than 1 year.
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But there is a memo saying it applies to absences of less than a year. Even if that memo is disregarded, it is still possible the OP can provide evidence to overcome the presumption that continuous residence was broken, given that the absence was less than a year.

So I would say that if the 11.5 month trip was not right before or after any other long trips, and the OP can afford to lose the fee, to go ahead and apply in May 2009 (the usual 5 year minus 90 days rule) with the plan of gathering evidence to convince the IO of NOT having broken continuous residence.
 
Jackolantern said:
But there is a memo saying it applies to absences of less than a year. Even if that memo is disregarded, it is still possible the OP can provide evidence to overcome the presumption that continuous residence was broken, given that the absence was less than a year.

So I would say that if the 11.5 month trip was not right before or after any other long trips, and the OP can afford to lose the fee, to go ahead and apply in May 2009 (the usual 5 year minus 90 days rule) with the plan of gathering evidence to convince the IO of NOT having broken continuous residence.
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Yes, I agree. I have always held that the 1993 correspondence letter in the adjudicator manual you are referring to (btw, it's not an official USCIS memo like those sent out to the field offices) falsely interprets the language of the 8 C.F.R. 316.5 (c)(1)(ii). I have yet to see any real life examples of the 4 years +1 day rule being used and/or accepted for travel less than 1 year.
 
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