9 days overstayed

K

kamalya

Registered Users (C)
I have interview on April 12th.
I have applied based on 5 year residency and I am worried that I will have problem on the interview for overstaying oversees for 9 days more than I was allowed 2003.
How picky are the officers? Did anyone had a problem who overstayed more than 6 months but less than 1 year.
I filed the taxes every year including 2003, it was small though about $10,000 since I worked only 3-4 months that year.
 
As I understand it, the onus is on you to prove that you did not give up your residency as a result of your greater than 6 month trip.

Bring anything that you can showing that you intended to remain a resident during that period (proof that you maintained a US resident, proof that you had immediate relatives remaining in the US, proof that you paid US taxes on your worldwide income that year, whatever).
 
I'm going to take a slightly different tack, and suggest that by itself, being slightly over the 180-day continuous residence criteria doesn't make much impact to your case. If you are easily able to demonstrate that your trip was intended to be temporary, then you stand almost as much chance of success as if your trip had been a few days shorter. What really counts is the overall impression the IO gets of your case, prior to, and during the interview.

If however, you've exceeded the 900 days physical presence rule, I think you'll find yourself in a different situation as there is no flexibility afforded in that area.

Please let us know how things worked out after you've had the interview.
 
Thank you for your replies.
I hope they will not make a big deal of it. I was taking German language classes in Austria for 3 months then I took a trip to 6 other countries (all stamps are in the passport) and then I went to visit my parents for 2 months.
All other years, I was not out of the country for more than 3 weeks.
I will let you know how it went after the interview.
 
With all those stamps and such it will probably be pretty clear you were on a vacation pretty much so I wouldn't really stress about 9 days at all. A month maybe. If you were living in only one coutry that entire time, then that might have been a different story. Since you have proof of going to 6-7 countries etc, then I'm sure they'll let you off...
 
I have posted my interview experience under NY timeline but I just cut and paste the part about my 9 days overstay.

The only concern was that when officer got to the part where I listed my travels outside of us, he said that I got big big problem.
Most of my trips were 2-3 weeks so in total over 5 years I have been out of USA 265 days.
I had one trip in 2003 to Austira for 3 month language course ( I have provided him the completion certificate),then I have visited few other countries and went to see my parents. I had surgery over there (notarized medical record provided) with complications so I had to pospone my return ticket.
I have overstayed only 9 days so I did not think it will be a big deal.
He said that he will need to show it to his supervisor for the final approval (made all copies of certificate, passport stamps and medical record ) but at the same time he had placed a big stamp APPROVED over my application.
I have also got a paper N-652 , marked as Congratulations! Your application has been recommended for approval.
So I am not 100% sure if I still might have problems with my 9 days overstay .
I have asked him about oath letter and he said I will get it in the mail (no
specific timeline)
I will keep you posted if/or when I get the oath letter

PD Date 01/11/07
Check cashed 01/17/07
I-797C Notice Date 01/19/07
I-797C Received Date 01/25/07
Fingerprints Appointment (New Rochelle, NY) 02/06/07
Interview 04/12/07 at Federal Plaza, NY
Oath letter ???
 
I hope everything will be alright, it has all the looks that you will be alright, and will get your oath letter soon. Thanks for the update, it is always good to have a follow up on this difficult corner cases.

Good luck.
 
Didn't think 9 day overstay 4 years ago would be an issue. It's a good thing you were well prepared.
 
It's not stupid. It's the law. There is a clear definition of break in continuous residence, that is, any time over 6 months.
 
i am getting a little bit concerned and confused about this residency thing.
in my case i was out of the country over 180 days for a period of 3years but none of the trips was over six months.
should i worry about it?
thanks
 
n400newyork said:
i am getting a little bit concerned and confused about this residency thing.
in my case i was out of the country over 180 days for a period of 3years but none of the trips was over six months.
should i worry about it?
thanks
Click to expand...

Are you applying under 3 year rule married to a USC? If so, then you are absolutely fine because under the above 3 year rule you have to meet following eligibility criteria:
  • Continuous Residence: As a Permanent Resident for 3 years you should not have left the United States for trips of 6 months or longer - You stated you meet this.
  • Physical Presence: As a Permanent Resident for 3 years you should have completed 18 months (540) or longer in US- 915 days per you.
Ofcourse above does not apply if you have been a Permanent Resident for the past 5 years and have no special circumstance.
 
Last edited by a moderator:
n400newyork said:
i am getting a little bit concerned and confused about this residency thing.
in my case i was out of the country over 180 days for a period of 3years but none of the trips was over six months.
should i worry about it?
thanks
Click to expand...

There are two residency requirements related to N-400. Assuming you are applying based on 5yr criteria, the numbers are as follows:

1. Physical Presence: you must have a minimum of 900 days physical presence in the US over the past 5 years. You get full credit for "partial" days - i.e. those where you either entered or left the US.

2. Continuous Residence: to maintain continuous residence, you must not be outside the US more than consecutive 180 days. If you take a trip lasting 181-364 days, you may be able to convince USCIS you did not interrupt your residency, but the burden of proof lies with the applicant. Trips longer than 1 year automatically interrupt residency unless you are covered by a valid N-470.

Note: many people think that rigidly adhering to the 180 day rule means they will have no problems with continuous residence during the N-400 interview. THIS IS NOT GUARANTEED, particularly if you have taken several back-to-back trips with only a few days spent in the US before going overseas again. Under these circumstances, USCIS looks at a person's intent, and will adjudicate the case based on whether they think the applicant is truly residing in the US, or has taken up foreign residence. Be careful if you are in this situation.
 
However also keep in mind that not all is lost when you were away for more than 180 days in a given year.

I had 2 trips:
5 months
Came back for 1 month
Went out again for 2.5 months.
Or sthg like that.
So the total was 7.5 months almost back to back. Although IO grilled me about this - I got naturalized.

The IO asked if I filed taxes on time while I was abroad. Luckily the answer was yes. I had a big problem because I maintained my place of residence with a friend. I had to explain that - the IO was suspicious as to how one can have a place of residence with a friend. But I explained that I had an agreement with my friend that this is where I could stay while abroad, this is where I could send letters, and my friend would always send any important info to me and I kept in touch. My feeling is the IO did not buy that - but still did not make problems.

On top of that I filed for reentry permit. The issue though with reentry is that it has more force in preserving your GC. But it can help establish temp. nature of your trip. In my case it was due to death of my dad - I did send it a death certificate along with my N400 Natz.

During my absence I continued to run my company in the US. So it paid taxes, employed people, had revenue etc. This by itself again in my opinion does not establish where one lives. My company also has an office abroad.....But at minimum it establishes strong ties to the US.

When I came for 1 month to the US - I did things like renewing drivers licence. This at minimum establishes that the 1 month trip was not a tourist trip.

I got a letter from my bank and credit cards that they were active and most of my assets were in the US.

When I was on GC I qualified for the Family Program. Basically my wife was barred from coming to the US. However I was able to secure an H1B visa for her at my company. When we went abroad - she did renew her H1B visa stamp which showed at minimum a will to return to the US. I am still slightly bitter over this issue. And I cannot imagine what happens to couples who have spouses who do not qualify for H1B.

I briefly took the car from the US abroad. However I drove on US plates and told the customs that I am returning to the US shortly. They treated me as a tourist /business person in my own country. This probably shows again some will to return to the US.

So for me the key was to establish a purpose for going abroad. A temporary purpose. Then it is good to have some ties in the US. A place of residence is superb - mine was weak. Ideally you want to have a house which you do not rent out when going abroad.

So the answer is that there are cases when sb goes abroad for a very long time like 7-8 months and still gets US citizenship.
 
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