Citizenship eligibility question - time spent out of the US

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wendogg

Registered Users (C)
Hello all. I wanted to get help on when would be the right time to start the application process for citizenship, considering that myself and family have spent time outside of the US, as follows:

We got our GCs end of June 2007, so its been 5 years and about 4 months since we got our GCs.

Wife:
06/2007 to 11/02/2007: In the US
11/03/2007 to 09/2008: Out of the US
09/2008 to date: Been present in the US without any trips (a little over 4 years continuous uninterrupted presence)

Myself:
06/2007 to 07/2007: In the US
07/2007 to 08/2007: Out of the US
09/2007: In the US
09/2007 to 06/2008: Out of the US
06/2008 to 07/2008: In the US
07/2008 to 09/2008: Out of the US
10/2008 to date: Been present in the US without any trips (4 years continuous uninterrupted presence)

As you can see, I have had more trips in and out of the US, while slowly moving "life" over to the US, with my longest absence being a 9 month trip, whereas my wife has only had one trip out of the US of about 10 months since we got our green cards.

Considering the time spent, when would it be safest to start the application process for citizenship ?

Thanks
 
You can apply 4year +1day after your arrival in USA on 06/2008. So you can apply right today. Of all you know you may approved without any hitch.

But if you want to play safe, apply in 06/2013,after the date you returned in 06/2008. Thus you will have 5 clear years after your long trip.
 
Thanks for your response.

My return date was late 10/2008 and my wife's mid 09/2008, not 06/2008, but I get your explanation. Either way 4 years + 1 day does make us eligible already. Do they usually ignore the 1st year - I'm asking this because of the 4 years + 1 day rule, and also because during one of my entries I spoke to the immigration agent that was checking my passport & GC at my PoE and she asked about my trip and I told her it was taking me a while to move family, work, etc to the US, and thats why I more than my wife and traveled a few times in and out. She said that "they" understand not everybody can just make the move in one go, so they give you upto a year to settle.

Should I trust that explanation to be in line with real policy on when one becomes eligible to apply for citizenship and the dates they look at to count towards eligibility?
 
wendogg said:
Thanks for your response.

My return date was late 10/2008 and my wife's mid 09/2008, not 06/2008, but I get your explanation. Either way 4 years + 1 day does make us eligible already. Do they usually ignore the 1st year - I'm asking this because of the 4 years + 1 day rule, and also because during one of my entries I spoke to the immigration agent that was checking my passport & GC at my PoE and she asked about my trip and I told her it was taking me a while to move family, work, etc to the US, and thats why I more than my wife and traveled a few times in and out. She said that "they" understand not everybody can just make the move in one go, so they give you upto a year to settle.

Should I trust that explanation to be in line with real policy on when one becomes eligible to apply for citizenship and the dates they look at to count towards eligibility?
Click to expand...

You have to be really careful with using the 4 years+one day rule, as its text, given in 8 C.F.R. § 316.5(c)(1)(ii), is pretty confusing
and many IOs are not very experienced in applying this rule.
The relevant text of 8 C.F.R. § 316.5(c)(1)(ii) says:

"(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d) , absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence."
See http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11185/0-0-0-30650/0-0-0-30706.html

There is a question as to what exactly is meant by "this paragraph" here (and what constitutes paragraph vs sub-paragraph in the text of 8CFR).

There is an old INS letter, from Sep 1993 which takes the view that the rule does apply to absences of more than 6 months but less than a year that disrupted continuous residence:
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-40527.html
This letter is currently listed as one of the appendices of the USCIS Adjudicator's Field manual, so presumably USCIS does think that the opinion expressed in the letter is correct.
However, it is not clear if the 4-year+one day rule can be applied to an absence of less than 6 months, such as your absence from 07/2008 to 09/2008. My impression is that the 4 yr+one day rule does not apply to such absences. If that is correct, and if the IO decides that your absence from 07/2008 to 09/2008 did disrupt your continuous residence (which the IO might do, based on the pattern of absences immediately preceding that absence and based on the specific circumstances regarding that absence), that would negate the applicability of the 4yr+1 day rule in your situation, and would mean that you'll only become eligible to file N-400
5 years minus 90 days from the return to the U.S. in 09/2008, that is around 06/2013.

So, as far as I understand, your best shot with trying to use the 4 years plus one day rule would be to claim applying that rule to the trip 09/2007 to 06/2008, and to claim that your trip 07/2008 to 09/2008 did not disrupt your continuous residency.

I suggest that you consult and immigration lawyer about this before you try filing N-400 based on the 4 yr+1 day rule. (In particular, ask if the rule could be applied to absences under 6 months than disrupted continuous residency).

If you do file an N-400 based on the 4yr+1 day rule, I suggest that you make this fact clear in the N-400 itself and in part 2 of N-400 (basis of eligibility) check box "D" (Other) and write there something like:
"8 C.F.R. § 316.5(c)(1)(ii) (4 years plus one day rule)".
 
Thanks for this information. I'm not in any particular rush, although I do want to get it done soon as I can with the least hussle. I can wait till Nov next year, when we both without a doubt would have had 5 years of unbroken stay, or Nov 1st next year minus 90 days.
 
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