Absence for more than 6 months but less than a year.

[jempol]

Sorry for asking this question, but I did some research in forum but I did not find the same case with mine.

I got my greencard on July 2002. I stayed for 4 month and went back to my country to take care my father for 11 month. I came back on October 2003, and stayed in the USA since then. Is the rules that my 364 days outside the country still apply to me because I didn't file I-131? When will my eligibility to apply for citizenship? I don't have work at the first time I came to the USA and did not file for tax return for the year 2002, but I filed tax start from year 2003.
Any advice will be appreciated. Thank you.

 

[boatbod]

If you break your continuous residence (which you did), then you can take advantage of a special rule which allows you to apply for citizenship 4yrs+1day from when you returned from the last trip that broke residence (i.e. Oct 2003).

Not sure about your missing tax return. You might want to check with a professional to see whether you should still file even though you didn't owe any tax. From a USCIS perspective, the simple act of filing a federal tax return (or not) counts as significant evidence of intent to maintain residency.

 

[jempol]

If you break your continuous residence (which you did), then you can take advantage of a special rule which allows you to apply for citizenship 4yrs+1day from when you returned from the last trip that broke residence (i.e. Oct 2003).

Not sure about your missing tax return. You might want to check with a professional to see whether you should still file even though you didn't owe any tax. From a USCIS perspective, the simple act of filing a federal tax return (or not) counts as significant evidence of intent to maintain residency.

@boatbod
thank you for the advice

 

[ZUR]

Sorry for asking this question, but I did some research in forum but I did not find the same case with mine.

I got my greencard on July 2002. I stayed for 4 month and went back to my country to take care my father for 11 month. I came back on October 2003, and stayed in the USA since then. Is the rules that my 364 days outside the country still apply to me because I didn't file I-131? When will my eligibility to apply for citizenship? I don't have work at the first time I came to the USA and did not file for tax return for the year 2002, but I filed tax start from year 2003.
Any advice will be appreciated. Thank you.

Jempol,

The answer to your question is actually given in the N-400 package. Basically, you have broken your residency but you don't have to follow the 4 yr rule because your absence was less than a year. You have to prove to USCIS that during that visit you did not abandon your intention to reside in the US. This could be done in several different ways. For example, your tax returns, bank accounts, lease, bills etc.. You can also show the medical bills for your father to prove that you had a situation which needed your attention. I think you should not have any problem convincing USCIS about this.

 

[baikal3]

Jempol,

I think you should not have any problem convincing USCIS about this.

I have seen quite a few posts, both in this and other forums, indicating that recently USCIS has become rather inflexible on this issue and it is now very hard to convince an IO that an absence longer than 6 months but less than a year did not break the continuous residence requirement.

Some threads regarding this:

http://www.immigrationportal.com/showthread.php?t=224102

http://boards.immigration.com/showthread.php?t=230060&highlight=continuous+residence

 

[boatbod]

The key point to remember in an "absence longer than 6 months but less than a year" situation is that the burden of proof lies with the applicant to show they did not break continuous residence.

In a case like this, where the break in residence was near the beginning of the 5 year waiting period, its arguably better to wait and apply based on the 4yr+1day rule since it presents less risk of being denied and wasting the $400 application fee.