Citizenship Eligibilty

[hir_00ce32]

I have a question for my wife who is going to apply for citizenship on November 20th 2011.
She entered US on February, 18th 2007 under family based F4 category.
Total numbers of trips outside US are 4. Total numbers of days outside US are 183.
Last Arrival to US 25th October, 2011.
Does she require physical present of 90 days in USA before she can apply for citizenship?

Thanks in advance!
~Hir_00ce32

 

[BigJoe5]

I have a question for my wife who is going to apply for citizenship on November 20th 2011.
She entered US on February, 18th 2007 under family based F4 category.
Total numbers of trips outside US are 4. Total numbers of days outside US are 183.
Last Arrival to US 25th October, 2011.
Does she require physical present of 90 days in USA before she can apply for citizenship?

Thanks in advance!
~Hir_00ce32

No. That 90 days refers to "residency" in one place in order to vest jurisdiction on the official who will preside over the naturalization proceeding. It is an old holdover from a now vastly changed system. In the old days, the Court had the final say in the matter of naturalization so one had to reside in the Court's jurisdiction and at the same time, INS would investigate the applicant's background locally.

Residence begins when one sets down in one spot in order to plant some roots. Mere vacations or business trips don't disrupt residence. But its a tricky business because of all the fraud that takes place.

Lastly, the burden of proof when affirmatively applying for ANY benefit in ANY context (not just naturalization) is always on the applicant. An affirmative application for a benefit is unlike a defensive application for relief. An affirmative applicant does not get the "benefit of the doubt". Instead, doubts are construed against an applicant who cannot meet their burden of proof.

 

[hir_00ce32]

Thank you BigJoe5 for prompt response. You are so helpful.

No. That 90 days refers to "residency" in one place in order to vest jurisdiction on the official who will preside over the naturalization proceeding. It is an old holdover from a now vastly changed system. In the old days, the Court had the final say in the matter of naturalization so one had to reside in the Court's jurisdiction and at the same time, INS would investigate the applicant's background locally.

Residence begins when one sets down in one spot in order to plant some roots. Mere vacations or business trips don't disrupt residence. But its a tricky business because of all the fraud that takes place.

Lastly, the burden of proof when affirmatively applying for ANY benefit in ANY context (not just naturalization) is always on the applicant. An affirmative application for a benefit is unlike a defensive application for relief. An affirmative applicant does not get the "benefit of the doubt". Instead, doubts are construed against an applicant who cannot meet their burden of proof.

 

[CalGreenCard]

Does she require physical present of 90 days in USA before she can apply for citizenship?

No not as long as her legal address in the USA hasn't changed in the 90 days prior to applying for citizenship.

Now if she'd left more than 90 days ago on her latest trip and were coming back to a different address than the one she left--that could be an issue and I'd recommend she wait until she's established herself in the new address for >90 days.

 

[Jackolantern]

No not as long as her legal address in the USA hasn't changed in the 90 days prior to applying for citizenship.

Now if she'd left more than 90 days ago on her latest trip and were coming back to a different address than the one she left--that could be an issue and I'd recommend she wait until she's established herself in the new address for >90 days.

If the new address is in the same district as the prior address, it would be unnecessary to wait 90 days at the new address.

 

[CalGreenCard]

If the new address is in the same district as the prior address, it would be unnecessary to wait 90 days at the new address.

Certainly this is true legally. If it were me, though, I'd wait until I'd had 90 days at a single address--that is, 90 days after the last time I filed AR-11--if I were nearing the end of the 90 day period. Reason: anything out of the ordinary has the potential to cause delays. If one is close to 90 days, why not just wait the full 90 days and give them one less thing to ask questions about.

Same thinking as in the idea that you shouldn't apply EXACTLY 90 days before the end of the 5 (or 3) year statutory period. Strictly speaking it's not necessary to wait then either but why not keep the risk of delays low?

 

[Bobsmyth]

. Reason: anything out of the ordinary has the potential to cause delays. If one is close to 90 days, why not just wait the full 90 days and give them one less thing to ask questions about.

Same thinking as in the idea that you shouldn't apply EXACTLY 90 days before the end of the 5 (or 3) year statutory period. Strictly speaking it's not necessary to wait then either but why not keep the risk of delays low?

Comparing filing exactly 90 days before accumulating the required continuous residency to filing after returning to the same service area after a long trip is fallacious. It's been shown that on some occasions filing exactly 90 days before accumulating the required continuous residency can lead to a denial due to miscalculation/misinterpretation by a day or two by an IO . However, when returning to the same service area after a long trip there is no room for misinterpretation or error; either an applicant has returned to the same service area or not. Of course, this is a moot point if the long trip has caused a break in residency which the applicant is unable to overcome.

 

[CalGreenCard]

However, when returning to the same service area after a long trip there is no room for misinterpretation or error; either an applicant has returned to the same service area or not.

I'm referring to the situation where someone has filed an AR-11--for a move within the same service area--less than 90 days before filing N-400. Whether they've traveled abroad or not is immaterial to the point I'm making.

Certainly in this case there is room for misinterpretation or error if the officer doesn't take note of the fact that the old address was in the same service area.

I have no idea whether such errors have typically been made in the past. But even absent evidence that such errors have been made in the past, I personally would wait the 90 days if it were me. I personally prefer to leave as little room for error as possible.

 

[Jackolantern]

I'm referring to the situation where someone has filed an AR-11--for a move within the same service area--less than 90 days before filing N-400. Whether they've traveled abroad or not is immaterial to the point I'm making.

Certainly in this case there is room for misinterpretation or error if the officer doesn't take note of the fact that the old address was in the same service area.

I have no idea whether such errors have typically been made in the past. But even absent evidence that such errors have been made in the past, I personally would wait the 90 days if it were me. I personally prefer to leave as little room for error as possible.

A big difference here is that applications often get rejected without an interview for filing prior to 90 days before the 5 year/3 year anniversary, whereas they don't do pre-interview rejections for having less than 90 days residence in the service area. So even if there is some sort of IO misinterpretation of that district residence requirement, at least there would be the opportunity to sort it out in the interview.

 

[CalGreenCard]

It is an old holdover from a now vastly changed system. In the old days, the Court had the final say in the matter of naturalization so one had to reside in the Court's jurisdiction and at the same time, INS would investigate the applicant's background locally.

I thought that in many areas of the country, albeit not where I naturalized, the Courts still retain the exclusive power to conduct naturalization oaths. Plus all naturalization oaths also involving a name change must be done as judicial oaths.

In areas where the Courts retain sole authority to conduct oaths it doesn't seem like it is that vastly changed.

 

[raevsky]

The power to naturalize does not belong to court exclusively. It is shared between USCIS and courts. Either one could naturalize. I am not sure whether it was different in the past and if so, how far ago it has changed.
I think it would be highly unlikely it belonged to courts exclusively at any point in US history though, because it would have created an enormous obstacle for courts to work with other issues.
However, the power to denaturalize belongs to courts exclusively, ever since creation of US.

 

[CalGreenCard]

I think it would be highly unlikely it belonged to courts exclusively at any point in US history though, because it would have created an enormous obstacle for courts to work with other issues.

Hmmm...this doesn't seem entirely consistent with the following:

Citizenship and Immigration Services--Ombudsman--Annual Report 2009

Note that at the bottom of page 64, in footnote 363, it says:

"Federal courts have authorized 33 USCIS district offices to conduct both large-and small-scale ceremonies, as well as individualized administrative oath ceremonies for elderly, infirm, or special needs applicants."

This would appear to suggest that when administrative oaths are held, it is essentially a delegated authority from the Courts, and presumably at some point in the past all oaths were conducted by the Courts. Also at the bottom of page 64 it says:

"In 41 of 74 federal court jurisdictions nationwide, however, courts retain the sole authority to oath all approved naturalization applications in judicial naturalization oath ceremonies."

Again, it suggests that the authority once rested solely with the Courts.

 

[CalGreenCard]

So even if there is some sort of IO misinterpretation of that district residence requirement, at least there would be the opportunity to sort it out in the interview.

I agree and moreover that is exactly why if it were me, I'd wait to file, esp if it were already nearly 90 days. If a problem arises at the interview, after investing several months + the fee in the process, that is MORE of a problem than if they just quickly send the application back, fee check included, without processing it.

 

[Bobsmyth]

I'm referring to the situation where someone has filed an AR-11--for a move within the same service area--less than 90 days before filing N-400.

I still don't see how filing an AR-11 for a move within the same service area with less than 90 days before filing n-400 would delay an application since the new address on the N-400 would confirm the move. I also don't see how this could be compared to filing exactly 90 days before meeting continuous residency requirement.

 

[raevsky]

Hmmm...this doesn't seem entirely consistent with the following:

Citizenship and Immigration Services--Ombudsman--Annual Report 2009

Note that at the bottom of page 64, in footnote 363, it says:

"Federal courts have authorized 33 USCIS district offices to conduct both large-and small-scale ceremonies, as well as individualized administrative oath ceremonies for elderly, infirm, or special needs applicants."

This would appear to suggest that when administrative oaths are held, it is essentially a delegated authority from the Courts, and presumably at some point in the past all oaths were conducted by the Courts. Also at the bottom of page 64 it says:

"In 41 of 74 federal court jurisdictions nationwide, however, courts retain the sole authority to oath all approved naturalization applications in judicial naturalization oath ceremonies."

Again, it suggests that the authority once rested solely with the Courts.

Yes, it looks like before 1990 courts had exclusive authority to naturalize. Since 1990 attorney general has an exclusive authority to naturalize. However, courts may have an exclusive authority to conduct the oath, if they provide sufficient prior notification to attorney general (INA 310)

 

[BigJoe5]

When someone with a pending N-400 provides a change of address, the new address is entered in the system and IF it is to a new jurisdiction, USCIS is alerted to that fact. (It is built into the program.) IF a new office will handle the case, a file transfer MAY be needed (it could still be at NBC.). If the case has been scheduled for interview and a file must move between offices, the appointment will be cancelled and re-scheduled. It is case specific handling. If you merely move around the corner then there would be no need to change office location, cancel and re-schedule an interview or any other appointment. A new notice MIGHT be sent.

 

[hir_00ce32]

In our case we are living on the same address for last 20 months, My wife had to go to back home for family emergency and she was out of county for 34 days()All togather 185 days in five years).

I hope she is eligible on 90th day prior to 5 years.

Thank you!
~Hir_00ce32