Advise needed -- Out of country and filing

[kodukulas]

hello all,

I am eligible to apply for citizenship in june 2009 and i am out of the country at present living with my family in Australia. I have satisfied all the requirements and i have not stayed more than 6 months any time from the point of my green card approval till now. I have the more than 30 months continous stay etc.

My question is can i send the Citizenship application to my brother to file for me and come by the time of finger prints. If so then what should i fill in the Part 7. About the recent trip which i am outside... since the return date is not there..

so can any body advise me on this..

Thanks
Sri

 

[thomas5]

kodukulas,
you can not file for the N-400 while you are out of the U.S. You will have to return here and file. There are no 2 ways to it.

 

[NewRunner]

USCIS has a publication called A Guide to Naturalization which clearly spells out the "continuous residence" and "physical presence" requirements for the N-400 before you file. The information you are looking for can be found from Pages 18 to 24.

There are specific rules that are in addition to the "I-have-had-a-green-card-for-5-years-therefore-I-am-fine" assumption that some people think is adequate. Also, before you file, you must have been a resident of a specific USCIS District or US State for at least 3 months.

 

[Jackolantern]

You can do the initial filing of the application when outside the US, but you still need to be living in the US during the application process. Keeping each trip under 6 months is not necessarily good enough. If you're living outside the US and taking short trips back only for the fingerprints, interview, and oath, your chances of denial are high. They look at the entire set of circumstances, not just whether each trip is 6 months or not.

http://forums.immigration.com/showthread.php?p=1759394#post1759394

Continuous Residence Example


The applicant filed Form N-400 on September 8, 1999. He met the physical presence requirements during the statutory period. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. He cited several rulings from the 1940’s to support his claim that he had met the continuous residence requirement.


The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.

 

[NewRunner]

You can do the initial filing of the application when outside the US

To build further on JackoLantern's point, here is the first paragraph of JackoLantern's previously quoted Sec 316 of the Immigration and Nationality Act (INA), amended as of Dec 2008. After reading the text of the actual law itself, I am not even sure you can do the initial filing of the N-400 when outside the US.

INA: ACT 316 - REQUIERMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE UNITED STATES

Sec. 316. [8 U.S.C. 1427]

(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

The italics and boldface emphasis are my revisions to highlight the points.

Of course, there is what the law says and then what USCIS will allow based on lawsuit and case law precedents and individual IO discretion. But based on what you are describing of your experience, and your intentions, USCIS would be within the law to deny your petition for naturalization.

 

[Bobsmyth]

You can file while physically outside of the US, but you must still retain your US residency ties up until the oath. Living with your family in Australia can be taken a sign of your intent to abandon those residency ties, even if the stay is just under the 6 month threshold.

 

[dms1]

The italics and boldface emphasis are my revisions to highlight the points.

I think you are picking out the wrong clause. I'm sure Jackolantern had this one in mind:

(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years

The OP says that he has met the 30-month physical presence requirement that you highlighted.

Of course, there is what the law says and then what USCIS will allow based on lawsuit and case law precedents and individual IO discretion.

USCIS is not allowed to break the law. If, for example, an applicant doesn't meet the physical presence requirement then USCIS would be legally obliged to deny the application. It is the continuous residence requirement (quoted above) for which the law allows USCIS a degree of discretion. It is up to the IO to judge whether an applicant's behaviour over the statutory period suggests that the US is their "home". The duration and pattern of trips taken will be a large factor in this judgment.

 

[Jackolantern]

After reading the text of the actual law itself, I am not even sure you can do the initial filing of the N-400 when outside the US.

I can't find it right now, but there was a case where somebody submitted the N-400 while outside the US, then returned to the US for most of the rest of the process, and they were denied because that initial submission was when they were outside the US. It was appealed, and the denial was overturned because there is no law or regulation requiring applicants to be in the US on the day of filing. Bobsmyth is familiar with that case, he might have a link.

 

[Jackolantern]

The duration and pattern of trips taken will be a large factor in this judgment.

In addition to the location of one's spouse and children, among other factors. If they are living outside the US and your long trips are to the same country where they're living, chances are the IO is going to lean towards the conclusion that your real residence is over there with your family, not alone in the US.

 

[NewRunner]

I think you are picking out the wrong clause. I'm sure Jackolantern had this one in mind:

(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years

The OP says that he has met the 30-month physical presence requirement that you highlighted.

My highlight was to emphasize to the OP that it was the 3-month stay in a USCIS District or US State that was going to be an issue. If the OP is eligible to apply in June 2009 for the N-400, he is well into the 3-month period when he should be living within a US jurisdiction.

However, if there is case law precedent that overturns this requirement, as pointed out by Jackolantern and Bobsmyth, this may not be a necessary requirement. But the law as written in Sec 316 says you have to be a resident in a USCIS District or US State for 3 months immediately before filing.

There was an incident on this forum just last month about someone who showed up to their DO interview in Idaho or Iowa or something with an out-of-state driver's license and was denied a chance to interview and asked to come back with a current state driver's license...and this was someone living IN the US.

Of course, there is what the law says and then what USCIS will allow based on lawsuit and case law precedents and individual IO discretion.

USCIS is not allowed to break the law. If, for example, an applicant doesn't meet the physical presence requirement then USCIS would be legally obliged to deny the application. It is the continuous residence requirement (quoted above) for which the law allows USCIS a degree of discretion.

I was not suggesting that the USCIS can ignore the law. I was saying that the law as published does not always reflect the most recent outcomes of lawsuits which create case law precedents that may supercede the published law.

Either way, I think the OP faces a challenge to prove that he has not abandoned residency, especially if he breaks "continuous residence" after April 28th.

 

[Jackolantern]

However, if there is case law precedent that overturns this requirement, as pointed out by Jackolantern and Bobsmyth, this may not be a necessary requirement.

The case I was referring to doesn't overturn the 3-month district residency requirement. That is a different issue. The case was about somebody who had lived where they're supposed to live for the required length of time, took a trip overseas, filed the N-400 while overseas, and then returned to the US and continued to live in the same place. They weren't living overseas, they just took a trip and happened to be physically outside the US at the time the N-400 was mailed in. It's like somebody who takes a vacation from April to June, and files the N-400 in May because that's when they became eligible and they didn't want to wait until the end of the trip.

 

[kodukulas]

Thanks to all who had shared your advise.. As for the district continous stay requirement i have in the state of Illinois since 2005 and i have a valid drivers license and all necessary documents like banking, credit cards and telephone bills in Chicago..

My only concern was can i file when i am outside USA or plan in such a way that i file and complete the whole process and then join my family.

Since i got married after i got GC they cannot join me immediately so waiting for this citizenship so that i can move their GC dependent application and move back to USA ASAP.

So please share your experience and i would plan accordingly

Thanks
Sri

 

[Bobsmyth]

How long have you been in Australia with your family and frequently do you travel there? IMO, it's too risky to try to apply from outside US in your case especially when they discover that you are with your spouse in Australia.

 

[sargodhian]

Thank you for helping everyone on such a delicate issue.

I lived in the USA for about 15 years but I became permanent resident in Feb 2004. Up until October 2007, I used to work in the head office of my current employer located in GA, USA and since October 2007 I was relocated to their branch office in Dubai. Before moving to Dubai I got my N-470 and REP approved and my employment contract is clearly mentioned that it’s temporary assignment for a period of 3 years but I know it will extend for some time.

I will be eligible for citizenship in Feb 2010 minus 90 days. However, at the time of eligibility I will still be in Dubai and will send my N-400 to my friend for filing with all the required paper work. My questions to you are:
1. Do I still need to come 3 months before filling for citizenship application to fullfill physical presence in the district?
2. Doesn’t the purpose of N-470 is to preserve residence while working abroad?
3. Can I apply while living abroad and make short trips for figure prints and so on to fulfill 3 months physical presence?
4. I have a bank account, own a house and utilities are still on my name. Will this help?

I along with my family will be in the USA in June 2010 for about 2 months but would like to apply around December to safe extra trips for finger prints, interview, and oath.

Your input on this matter will be greatly appointed.

 

[vettipuls]

Thank you for helping everyone on such a delicate issue.

I lived in the USA for about 15 years but I became permanent resident in Feb 2004. Up until October 2007, I used to work in the head office of my current employer located in GA, USA and since October 2007 I was relocated to their branch office in Dubai. Before moving to Dubai I got my N-470 and REP approved and my employment contract is clearly mentioned that it’s temporary assignment for a period of 3 years but I know it will extend for some time.

I will be eligible for citizenship in Feb 2010 minus 90 days. However, at the time of eligibility I will still be in Dubai and will send my N-400 to my friend for filing with all the required paper work. My questions to you are:
1. Do I still need to come 3 months before filling for citizenship application to fullfill physical presence in the district?
2. Doesn’t the purpose of N-470 is to preserve residence while working abroad?
3. Can I apply while living abroad and make short trips for figure prints and so on to fulfill 3 months physical presence?
4. I have a bank account, own a house and utilities are still on my name. Will this help?

I along with my family will be in the USA in June 2010 for about 2 months but would like to apply around December to safe extra trips for finger prints, interview, and oath.

Your input on this matter will be greatly appointed.

Weren't you eligible in December 2008 instead of December 2009? You must have satisfied the 30 months physical presence from Feb 2004 - Oct 2007 right?

 

[vettipuls]

Thank you for helping everyone on such a delicate issue.

I lived in the USA for about 15 years but I became permanent resident in Feb 2004. Up until October 2007, I used to work in the head office of my current employer located in GA, USA and since October 2007 I was relocated to their branch office in Dubai. Before moving to Dubai I got my N-470 and REP approved and my employment contract is clearly mentioned that it’s temporary assignment for a period of 3 years but I know it will extend for some time.

I will be eligible for citizenship in Feb 2010 minus 90 days. However, at the time of eligibility I will still be in Dubai and will send my N-400 to my friend for filing with all the required paper work. My questions to you are:
1. Do I still need to come 3 months before filling for citizenship application to fullfill physical presence in the district?
2. Doesn’t the purpose of N-470 is to preserve residence while working abroad?
3. Can I apply while living abroad and make short trips for figure prints and so on to fulfill 3 months physical presence?
4. I have a bank account, own a house and utilities are still on my name. Will this help?

I along with my family will be in the USA in June 2010 for about 2 months but would like to apply around December to safe extra trips for finger prints, interview, and oath.

Your input on this matter will be greatly appointed.

1. No you don't have to. If you have lived in the district you are going to file for 3 months anytime in the past you are good to go. It does not have to be immediately preceding your filing.
2. Yes. But you still need to have a re-entry permit for trips > 1 year nor does it relieve you from meeting the physical presence requirements of 30 months.
3. Some say yes some say no. Grey area.
4. Yes very much so. They will definitely help especially owning a home and utilities being in your name. Take your 5 years of trax transcripts also with you.

 

[sargodhian]

Weren't you eligible in December 2008 instead of December 2009? You must have satisfied the 30 months physical presence from Feb 2004 - Oct 2007 right?

Thank you Vettipuls for your response.

No I will only be eligible in November 2009 as I am on 5 year plan. I became PR on Feb 28, 2004 so 5 years onward minus 90 is Nov 28, 2009.

I do have 2 years reentry permit valid until May 2010 which I have used once and will use once again before its expiration.

My only concern is filling outside the USA. I will be using my overseas address as my home address on the form and will be using my USA home address as mailing address (My friend is living there and she will let me know about the notice form USCIS.

 

[sri69]

My only concern is filling outside the USA. I will be using my overseas address as my home address on the form...

I don't think that this will fly. Seek advice from others, but it doesn't seem to make sense that one could claim physical residence in a state when deliberately stating an out of country (let alone out of state) physical address.

A consideration may be to rent a cheapie room or apartment (even if it is a friend's place) so that you can list that address as your perm physical address in good conscience, if you plan to be out of the country for a couple months. I would avoid using an out of country address.

 

[Jackolantern]

My only concern is filling outside the USA. I will be using my overseas address as my home address on the form and will be using my USA home address as mailing address (My friend is living there and she will let me know about the notice form USCIS.

Why would you want to do that? You have a house in the US, so use that. Your overseas address is a temporary location (although more than a year) for work purposes and you will be returning to your US address upon completion of your overseas work, right?

 

[Jackolantern]

A consideration may be to rent a cheapie room or apartment (even if it is a friend's place) so that you can list that address as your perm physical address in good conscience, if you plan to be out of the country for a couple months. I would avoid using an out of country address.

Sargodhian mentioned having a house. Assuming it is in the US, a "cheapie apartment" would be unnecessary.