Approved! Continuous Residency OK.
- Thread starter immigrateful
- Start date
CrossHairs
Registered Users (C)
understanding IO makes the difference.
Congrats immigrateful.
Congrats immigrateful.
It is really funny how we tend to wrongly interpret the law as amateurs. We can discuss this matter between ourselves for days – without conclusion. Let’s read the statement from Attorney at Law with thirty years of immigration experience:
"The law provides that continuous residence is broken by any absence of more than 365 consecutive days. This is conclusive and there are no exceptions. The law further provides that any absence of 180 or more consecutive days presumptively breaks continuous residence, but this is only a presumption and may be rebutted. Finally, the law presumes that any absence of less than 180 days does not break continuous residence." - Ron Gotcher, Attorney at Law, Gotcher & Gotcher, LLP
Thats all well and good if you could take it in isolation, and its certainly how a SINGLE trip is viewed, however the issue of multiple back to back trips is viewed very differently by a great number of USCIS IOs. Point being that you can't simply skirt the law by breaking one long trip into multiple shorter ones.
immigrateful
Registered Users (C)
Actually, I would argue exactly to the contrary.
The fact that anyone makes back-to-back trips and works hard at keeping them below 180 days is clear indication that the person is genuinely trying to comply with the advertized law as opposed to skirting around it.
If a person clearly demonstrates such intent of being a good lawful permanent resident who works hard at abiding by the law, what business does the USCIS have in denying that application?
Jackolantern
Registered Users (C)
In the last sentence he used the word "presumes" without "irrebuttable." So his statement still does not mean that trips of under 6 months will make one immune to all other reasons for a finding of breaking continuous residence.
I give up. I have quoted the naturalization law, adjudicator's manual, immigration lawyers… But you still believe that you are above all of them with your interpretation of the law.
immigrateful
Registered Users (C)
Sure, if you make deviations (for which there are provisions) from the normal process then you will have to work a little extra and provide the additional documentation the USCIS requires to prove that you are/were a continuous resident of the US.
That does not mean that people withdraw their applications or not apply at all if they've had to travel extensively.
It just means you have to be extra cautious.
Jackolantern
Registered Users (C)
Yes you quoted all of that, but not one of them says that every trip being under 6 months means one is immune to denial for residence issues. Not a single one. If they can't deny you for the trip itself, they can still deny you based on other evidence of breaking residence.
The adjudicator's manual itself has an example of somebody being denied even though each trip was under 6 months.
http://immigrationportal.com/showthread.php?p=1934603#post1934603
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immigrateful
Registered Users (C)
Here's the complete text for this oft quoted 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. "
This example was cited to me as well and suggestions were made that I withdraw my application. As always, the example has been quoted out of context once again thereby scaring applicants. If you look at the portion I've underlined, you will see that the example is included in the manual to emphasize the fact that the person cannot relinquish US residency until the day of the oath if he expects to naturalize successfully.
Jackolantern
Registered Users (C)
I agree. In addition, they put the "He was not gone for more than six months at any time" in there, apparently to show that keeping each absence under six months does not give total protection from other lines of attack. One may be denied or approved based on the total evidence; under six months does not guarantee approval, and over six months does not guarantee rejection.
immigrateful
Registered Users (C)
This statement is very tightly coupled with this other one from the example:
"He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England."
In this hypothetical example the person was denied citizenship because he did not maintain residency continuously until the last day of the oath. That's all this example is about.
You can travel as much as you like and you cannot be denied citizenship as long as you can establish that you were a US resident all along. And of course, you need to meet the physical presence requirement.
Jackolantern
Registered Users (C)
Yes, it is tightly coupled to that, and it showed that "each trip under six months" was not enough to save him once he acknowledged he was residing in England. But some here are still pushing the idea that the "under six months" thing is a bulletproof shield for all continuous residence issues.
Regardless of INA 316(b), USCIS' current position is that
"every applicant has the burden of establishing by the overall context of facts and evidence that he or she has complied" with INA 316(a)(2).
For example, if an applicant receives a job offer oversees with a non US company and moves there with his family, he has broken continuous residency regardless of if he returns to the US every five months since his principal residence is now in the foreign country.
Now, if an applicant travels to a foreign country to take care of a sick relative but returns to the US every five months, continues to pay US taxes, and holds a US residence the "overall context and facts of evidence" shows that he maintained continuous residence in US.
Again,it's important to look at the details of each case before passing judgment or offering advice.
For example, if an applicant receives a job offer oversees with a non US company and moves there with his family, he has broken continuous residency regardless of if he returns to the US every five months since his principal residence is now in the foreign country.
Now, if an applicant travels to a foreign country to take care of a sick relative but returns to the US every five months, continues to pay US taxes, and holds a US residence the "overall context and facts of evidence" shows that he maintained continuous residence in US.
Again,it's important to look at the details of each case before passing judgment or offering advice.
CrossHairs
Registered Users (C)
immigrateful,
Simple question: Do you or do you not agree IO makes a difference? A difficult IO can make your interview very difficult and deny you as well.
Ofcourse, you can go to court etc later. But I hope you agree the IO is what matters most in many of these cases where frequent long trips are involved. Luck does play a part.
Simple question: Do you or do you not agree IO makes a difference? A difficult IO can make your interview very difficult and deny you as well.
Ofcourse, you can go to court etc later. But I hope you agree the IO is what matters most in many of these cases where frequent long trips are involved. Luck does play a part.
immigrateful
Registered Users (C)
You're right - a bad IO can start you off on the path to a denial. If you are really unlucky, your IO will have a bad supervisor and that means the only way out is an appeal followed by going to the courts, if required.
I guess we shouldn't buy in to the argument that you have to be lucky to get an approval rather the other way round - you really have to be unlucky to be denied.
Oh realli haha, I know non-US employment overseas is bad for CR but nv knew they might actually be forgiving towards students haha.
Well we will see
Oh realli haha, I know non-US employment overseas is bad for CR but nv knew they might actually be forgiving towards students haha.
Well we will see
Over the past couple of years, this forum has had numerous of cases of overseas students being approved for N-400.
Thanks for your informative posting. My husband is in a similar situation as you were and stayed out of the country for a long stretch. His timeline is as follows:
date of entry to US and green card date: July 19 2005
07/19/2005 - 08/30/2005 US (42 days)
08/31/2005 - 02/09/2006 Italy (160 days)
02/09/2006 - 02/22/2006 US (10 days)
02/22/2006 - 06/19/2006 Italy (120 days)
06/19/2006 – 07/09/2006 US (20 days)
07/10/2006 – 09/28/2006 Italy (78 days)
09/09/2006 – to date US
On one trip back to the US he obtained his driver's license and another worked a bit painting. I was out of the country because I was in the middle of a custody dispute over my two children from a previous marriage and it dragged out longer than expected. Meantime, we bought a house and hubby is gainfully employed at a public school. He has one US citizen child and two US citizen stepchildren who live with us.
I'll post the outcome for us as soon as he has the interview, denial or approval it may be.
K
Can you provide more details?
Is this a 3 year marriage based application with you being a US citizen?
What principal residence did your husband have during his time in Italy?
What was the purpose of his stay in Italy?
Did he file taxes every year?