Application denial need help to decide which options to take

[vision1227]

This addressed to Jackolantern or boatbod or anyone with good knowledge regarding this subject:

You seem to very knowledgeable about continuous residency. My wife was denied recently for naturalization. The IO told her since I worked/resided overseas that she does not qualify to file as spouse of citizen. Second he said we file joint tax returns, which we cannot do if we live apart. He also said you can apply again next year not using the marriage provision. I know that she did not meet the criteria for continuous residency as I have researched your posts, she had really stayed with me for 5 months then come back to US for a few months since 08/2006. Anyhow I tried to follow the technical aspect and we got burned. The lawyer feels that we have strong grounds for appeal (she maybe trying to take my money). She would like to rebut the denial letter with strong evidence to show our ties to the US.
Ok my question to you is what are our options now. I still have to live/work overseas. If she now stays put in the US for 18 months straight without traveling (or however long it takes to go through the application process again) can she apply again under the marriage provision and meet continuous residency requirements? Is there a minimum time period that must elapse before re-applying? Your help is greatly appreciated. Thanks

 

[Jackolantern]

If denied for continuous residence, she can reapply once she has completed sufficient continuous residence and physical presence. There is no minimum waiting time other than what is required to fulfill the 3 year/5 year requirement. Continuous residence generally means a pattern of spending more time inside the US than outside, (unless meeting one of the few exceptions such as working abroad for a US corporation or the US government).

Is she in the US now? If yes, since when? If not, when is she planning to come back to the US? The key is to figure out the point in time such that when you look back, she would have completed the most recent 5 years in a row spending most of each year within the US, or 3 years living with you in the US.

 

[CAHope]

I know that she did not meet the criteria for continuous residency as I have researched your posts, she had really stayed with me for 5 months

Based on trip that was less then 6 months – she didn’t break the continuous residence requirement. 5 months trip is perfectly fine. The continuous residence is broken with the trip over 6 months – 1 year, unless you can prove otherwise.

If you can prove her ties to US – lease, driver’s license, credit cards, utility bills, tax payments etc – she has the case.

I would definitely explore options with a few good lawyers. It is absurd to be denied for having one 5 months trip (less than 6 months requirement) – unless there are other circumstances seen by IO.

 

[Vorpal]

Based on trip that was less then 6 months – she didn’t break the continuous residence requirement. 5 months trip is perfectly fine. The continuous residence is broken with the trip over 6 months – 1 year, unless you can prove otherwise.

If you can prove her ties to US – lease, driver’s license, credit cards, utility bills, tax payments etc – she has the case.

I would definitely explore options with a few good lawyers. It is absurd to be denied for having one 5 months trip (less than 6 months requirement) – unless there are other circumstances seen by IO.

Take another look at the OP. It clearly implies that there were several 5 month trips since 08/2006.

 

[Jackolantern]

It is absurd to be denied for having one 5 months trip (less than 6 months requirement) – unless there are other circumstances seen by IO.

It's not just that 5 month trip that was the issue. There were other trips as well. In addition, her husband (the OP) was living in the UK, and she was spending her long trips with him in the UK. Under the 3-year rule, both the applicant and the US citizen spouse need to be living in the US for the 3 years (aside from the military exceptions etc.).

 

[boatbod]

The IO told her since I worked/resided overseas that she does not qualify to file as spouse of citizen.

How long are you planning to be abroad, and are you working for a US or foreign owned company?

If you are going to be away for more than 1yr, and work for the US Govt or a US owned corporation, your wife may be eligible for expedited citizenship under INA 319(b)

 

[vision1227]

Thanks for input. She made several long trips outside the US since 8/2006 but none of them over 6 months. I am the owner of the foreign based company does that qualify for the expedited status since I am the US citizen? Her 5 year anniversay for being PR is in 7/2009. Since 8/2006 she has spent most of the time out of the US, but never a trip that lasted over 6 months. We maintained joint bank accounts, have 2 kids, have a lot of family in the US, own a car, pay insurance. Is this grounds to appeal first denial or am I just waisting time and money?

 

[Jackolantern]

Your company is not incorporated in the US and doing business in the US, so it won't count.

"Each trip is under 6 months" is not good enough. All that means is that with each trip being under 6 months, the automatic presumption of breaking continuous residence is avoided. It doesn't mean one is safe.

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2

(c) Statutorily Defined Breaks in Continuity of Residence.
Every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied with the continuous residence requirement. However, section 316(b) of the Act specifies two types of absence from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization:

I think appealing would be a waste of time and money. In addition to residence issues, it doesn't sound as if she even has the 18 months of physical presence in the 3 years prior to the interview, and you were not living in the US with her! With the 3 year rule, BOTH the husband and wife must be continuously residing in the US for the 3 years. You have even longer absences from the US than she does.

 

[boatbod]

I am the owner of the foreign based company does that qualify for the expedited status since I am the US citizen?

No, because its not a US Corporation. You may also find that your ownership of a foreign business makes your wife's case worse, because it demonstrates a clear intent to reside outside the US. Even if your wife did move back to the US for the 5 years necessary for her to naturalize, she may still run afoul of immigration laws if USCIS realizes her eventual intent is to join you abroad.

Natz laws require the applicant to have an intention to live in the US for an indefinite period after taking the oath. Practically speaking this doesn't mean you can't move abroad after oath, but it does mean there can't be a preconceived intention to do so.

 

[saf]

It would be useful if you find a USA job that doesn't require to travel to avoid problems with n-400. Wouldn't life be easy if you and your spouse live apart?

 

[vision1227]

I think appealing would be a waste of time and money. In addition to residence issues, it doesn't sound as if she even has the 18 months of physical presence in the 3 years prior to the interview, and you were not living in the US with her! With the 3 year rule, BOTH the husband and wife must be continuously residing in the US for the 3 years. You have even longer absences from the US than she does.

She has met the 18 months as far as I know, as we both lived and worked in the US from the time she became PR 07/2004 until 08/2006. And since she has never gone over 6 months when out of country, that means she has maintained her residency for PR residence purposes is it not? So in theory could she re-apply at her 5 yr anniversary or as soon as she meets the 30 month physical stay requirement counting the time from 07/2004 until 08/2006 that is 25 months, so another 5 month stay, application in 04/2009 and stay throughout the entire application process. I know guys it sounds like I'm trying to work the system, but it is really hard for me and my children being US citizens and my wife is not, just food for thought, doesn't this sound like it is undue hardship in this circumstance if the wife had to be dragged around by her husband's job with the children, always being under the gun of maintaining/fulfilling US residency requirements.

 

[Jackolantern]

She has met the 18 months as far as I know, as we both lived and worked in the US from the time she became PR 07/2004 until 08/2006.

The 18 months of physical presence must be within the 3 years immediately prior to filing the N-400, and there must also be 18 months of physical presence in the 3 years immediately prior to the interview (which would be from mid-2005 until now, not 2004 to 2006).

She has met the 18 months as far as I know, as we both lived and worked in the US from the time she became PR 07/2004 until 08/2006. And since she has never gone over 6 months when out of country, that means she has maintained her residency for PR residence purposes is it not?

How many times do we have to repeat it? Each trip being under 6 months is not the only criteria. It only means one has avoided the automatic presumption of breaking continuous residence. Having avoided the automatic presumption, the IO will look at the totality of the evidence. That evidence shows a pattern of a series of trips over multiple years during which very little time is spent in the US. In addition, the spouse is living and working outside the US for a non-US corporation. The totality of the evidence showed that she was residing in outside the US for some time.

Also, here is a quote from USCIS that lists an example of denial even though each trip was under 6 months (boldings are mine):

http://www.uscis.gov/propub/templat...tion|chapter 74.2c&s_type=all&hash=0-0-0-1296

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.

 

[raevsky]

I think it was the possible separation issue that was the reason for denial. Has nothing to do with continious residence requirement or pfysical presence requirement.
That is why the officer was right, because you did not establish the necessary proof. If the proof is provided, you could appeal.

(G) Separation .

(i) General . When an application is filed based upon marriage it is essential under the statute to determine whether the applicant is living apart from the citizen spouse or has been separated from the spouse at any time during the statutory period. Applicants sometimes think of a marital separation only in judicial terms. You must specifically ask if the applicant and spouse have at any time resided apart, for any reason, no matter how long the separation lasted. In completing the application, an applicant will frequ ently insert the city of his or her residence in the space provided for the residence of the spouse.

(ii) Legal Separation . Should a separation be admitted, it is important to ascertain as nearly as possible the specific dates of its duration. You must ascertain the complete circumstances that brought it about in order to determine whether the requisite continuity of living in marital union has been breached. When an applicant is applying for citizenship pursuant to section 319(a) of the Act, any legal separation will break the continuity of the marital union and render the applicant ineligible under this section of the law. S ee 8 CFR 319.1(b)(2)(ii)(A) .

(iii) Informal Separation . In addition, any informal separation that suggests marital disunity will be evaluated on a case-by-case basis to determine if there is sufficient evidence to signify the dissolution of the marital union. See 8 CFR 319.1(b)(2)(ii)(B) . Occasionally, an applicant will attempt to conceal a marital separation by claiming that the citizen spouse was away on a business trip for an extended period. This is especially apt to occur when the couple has reconciled and resumed living together during the statutory period. Accordingly, whenever it is alleged that the citizen spouse has been away on business for a protracted period of time, the matter should be explored thoroughly. Your questions should cover details of travel, correspondence with th e spouse, and details the applicant might be expected to know under the circumstances.

(iv) Involuntary Separation . When an applicant and spouse live apart as a result of circumstances beyond their control (i.e.) service in the military or essential business or occupational demands, the resulting separation, even if prolonged, will not preclude naturalization under this part. See 8 CFR section 319.1(b)(2)(ii)(C). It is essential to determine whether the decision resulting in the separation, was driven by a true economic need or simply driven by a comfort level that the couple prefers. If the decision made was not drive n by a true economic need or required military service, the applicant applying under this section may not qualify.

• Example of involuntary separation: A husband and wife met while working towards PhDs at the University of California, Santa Barbara. The USC husband accepted a tenure track position at Hamilton College in Rome, New York. The LPR wife was offered a Post-Doctorate Fellowship at the Smithsonian. The husband and wife had been living apart for most of the three years. She had telephone bills, copies of e-mails to each other, stubs from some airline tickets from vacations and school breaks, and credible testimony that her husband sometimes drove back and forth on three or four day weekends. The adjudicator approved this case at the time of the examination for having qualified the separation as an involuntary separation.

 

[CAHope]

Also, here is a quote from USCIS that lists an example of denial even though each trip was under 6 months

"He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England."

This was crucial fact, that they have admitted having residence in UK – so their continuous residence in US is broken.

This denial doesn’t have to do nothing with 6 months trip rule as you have pointed out.

 

[Jackolantern]

I think it was the possible separation issue that was the reason for denial. Has nothing to do with continious residence requirement or pfysical presence requirement.

The OP was living abroad more than the wife, working for a non-US company and usually not accompanying her on her short trips back to the US. If the claim is that they weren't really separated, that means they were both living abroad. Regardless, the US citizen needs to be residing in the US for the 3 year period, which clearly isn't the case.

From physical presence to too many trips to the US citizen living abroad, there are multiple reasons for denying this case; the only way of winning on appeal would be to bring back Johnnie Cochran from his grave.

 

[Jackolantern]

This denial doesn’t have to do nothing with 6 months trip rule as you have pointed out.

But it still shows that "each trip under 6 months" is not enough to be safe from denial for breaking continuous residence.

 

[raevsky]

He also said you can apply again next year not using the marriage provision

This indicates the reason for denial was specific to naturalization through US citizen spouse.

If the claim is that they weren't really separated, that means they were both living abroad. Regardless, the US citizen needs to be residing in the US for the 3 year period, which clearly isn't the case.

The officer though they did not prove they were not separated during a part of the period he spent outside of US. I am sure he though about some time she spent in the US, but his being outside. Especially when she claimed the US citizen resided outside ot the US, but GC holder claimed to reside in the US. So, she claimed to reside separately from each other. So, they were separated.

 

[boatbod]

This indicates the reason for denial was specific to naturalization through US citizen spouse.

USCIS only needs to find one reason to deny someone - they don't have to list all the reasons. If she reapplies next year, they may simply deny again based on lack of continuous residence.

The only sure-fire way to get approved, is to have 5 solid years of residency and no skeletons in the closet. Anything less, and the outcome heavily depends on the mood of the IO conducting the interview. Somewhat unfair, but not much you can do about it.

 

[vision1227]

Ok got the denial letter in the mail. The gist of it says that between 8/14/2006 and 7/23/2008 you were only in the country for 15 days. He had also mentioned that my wife admitted that she was staying in overseas, which is a lie he asked her 3 times where she lives and she told him she lives in the United States. I can understand if they want to presume or assume whatever they like, but I do not understand that they could falsify a statement that my wife gave, another false statement he wrote on the denial is that she was unemployed and had no residence of your own before the departure, in fact again he was wrong she had been working from the time she was legally authorized to work in the US sometime in 2002, and she only stopped working because the birth of our son in 8/2005 after that she also finished her degree 12/2005. The statement that we had no residence of our own is that, we have always lived in joint family system, the house that we have always lived in is under my parents name, and the house that she resides in now is under my brothers. I have always been a pragmatic person and will admit when I'm wrong, but in this case I feel that we were sincerely wronged by this officer, he did not even ask my wife to give any evidence that may prove that our primary residence is still the US.

 

[Jackolantern]

Ok got the denial letter in the mail. The gist of it says that between 8/14/2006 and 7/23/2008 you were only in the country for 15 days.

I suppose you meant 6/23/2008, because 7/23/2008 isn't here yet.

If it is true that she only had 15 days in that period, she would have had less than 14 months of physical presence in the past 3 years leading up to the interview, which is less than the required 18 months. The other reasons may be bogus in some ways, but you can't get around the physical presence requirement (unless using the military/N-470 exception).

If that 15-day statement is not true, exactly how many months of physical presence did she have in the US in the 3 years right before the interview?