Citizenship - Over 6months stay outside US

[zyxLPR]

Dear ALL,
Anybody who stayed outside US continuously for >6months but <1yr got their citizenship denied?

In "A Guide to Naturalization" under continuous residency, it says "If you leave the US for >6 months but <1yr, you have broken your residency UNLESS YOU CAN PROVE OTHERWISE".

My attorney told me that one has to prove his/her intent to keep permanent residency in US and suggested me to take re-entry permit and continue to file taxes as resident.

Brief Context:
Applied for citizenship after being on GC for 5yrs. (LPR since Apr 2002, applied in Feb 2007, FP in Apr and inverview in May).

I was outside US for most of the time from Jan 2005 to June 2006. Came to US in Nov 2005 for a week to keep the prior physical stay (~31 months) intact and not to break 1yr rule. Taken the RE-ENTRY permit though. I was working for a MNC in India and getting paid in Indian currency. Paid/Filed taxes in India and also filed tax returns in US as a resident by declaring the overseas income and taxes. Got an internal transfer back to US in Apr 2007 and getting paid in US currency now.

The IO at the interview seemed to have made up his mind to deny my citizenship application and clearly told me during the first few minutes of the interview itself that no officer could approve my application. However, he went ahead and asked few questions on US history and civic lessons and also tested my English proficiency. I also took my attorney for the interview with me, who couldn’t convince the IO.

The officer asked me:
Do you have any immediately family members in US?
Do you own a home?
Did you continue your employment in the US while you were away?

My response to all of the above was "NO". But I told him, the most immediate family member I could have is my brother with whom I had been living all along while in the US and worked for a US company in India and also got internally transferred back to US now.

I tried to convince the IO by showing the following documents:
Re-Entry permit - Applied in Jan 05, got it in Mar 05 and valid until Mar 07.
Same Address - I have been maintaining the same address (my brother's home) since 2001 and getting all the mail delivered here.
Tax Transcripts – Provided last 5yrs transcripts
Car loan payments - Paid monthly car loan payments until Jan 2007.
Car Registration - Didn't sell my car hence renewed whenever it's due
Car Insurance - Renewed comprehensive insurance upon its due every 6months
Bank Statements - Maintained the bank account
Investments - 401(k), Roth IRA, Stock investments etc
Credit Card bills – Have maintained the US credit cards

But he couldn't buy any of the above. Hence most likely will send me denial letter in the mail soon.

If denied, I am planning to appeal. Any suggestions, precautions, tips and tricks?

I am also considering whether to use the current attorney, different attorney or no attorney.

 

[1caliN400]

Just FYI: I believe that a re-entry permit does NOT preserve continuous residency. A re-entry permit only preserves your permanent resident status.

 

[boatbod]

Just FYI: I believe that a re-entry permit does NOT preserve continuous residency. A re-entry permit only preserves your permanent resident status.

That is correct - it only proves an intent to return to the US, hence the reason it saves your GC from abandonment. The only way to guarantee your continuous residence is through an N-470 (or never leaving US soil!).

zyxLPR, based on what you've told us so far, it sounds to me like you were working overseas on an indefinite basis until you decided to get the transfer back to the US. (Did you have any documentation from your employer to prove you were only going to be on a temporary assignment abroad?). You also discovered that flying back to the US for a short visit does nothing to preserve naturalization eligibility. In effect, your trip lasted from Jan 2005 through Jun 2006 - a whopping 17 months!

Sadly I think you are correct that you are about to be denied. The good news (if there is any) is that you would be eligible to reapply based on 4yrs+1day rule in June 2010.

 

[zyxLPR]

I understand that the re-entry permit does NOT preserve continuous residency. However, it's the document that can demonstrate your intent to keep your permanent residency in the U.S, per my attorney.

Since the 6months to 1 yr absence is a grey area since it clearly says "UNLESS YOU CAN PROVE OTHERWISE", the burden of proof is on me to convince USCIS.

I am trying to see how people used that clause and proved their continuous residency.

 

[zyxLPR]

(Did you have any documentation from your employer to prove you were only going to be on a temporary assignment abroad?).

No I don't have anything from my employer. It is only my intent and hence only in my mind.

You also discovered that flying back to the US for a short visit does nothing to preserve naturalization eligibility. In effect, your trip lasted from Jan 2005 through Jun 2006 - a whopping 17 months!

I was trying not to break that 1 yr rule.

Sadly I think you are correct that you are about to be denied. The good news (if there is any) is that you would be eligible to reapply based on 4yrs+1day rule in June 2010.

Actually IO told me that I will NOT be eligible to use 4yrs+1 day rule as I was never outside continuously for more than 1yr. I made a trip in Nov 05 between Jan 05 and Jun 06.

 

[boatbod]

Actually IO told me that I will NOT be eligible to use 4yrs+1 day rule as I was never outside continuously for more than 1yr. I made a trip in Nov 05 between Jan 05 and Jun 06.

You might be interested to know that USCIS' own guidelines say you are eligible for 4yr+1day... Sometimes an IO doesn't always appear to be "in touch" with all the relevant material. Tough to correct at the time, but true nevertheless.

The Adjudicator's Field Manual is one of the best resources for figuring out what you can and can't do. Specifically, there is Appendix 74-13 covering absences more than 6 months but less than one year, and the applicability of the 4yr+1day rule.

 

[boatbod]

I was trying not to break that 1 yr rule.

I understand, but it makes no difference. If you are residing and working abroad, you can pretty much say goodbye to your continuous residence any time after the first six months (and sometimes sooner than that). USCIS looks at the whole picture, not just individual residency rules, and adjudicates your case based upon their impression of your intent. As you rightly point out, only you can know your real intent because its all in your mind, so the best they can do is look at the evidence you offer them. The only thing you can do is (a) provide more evidence for an appeal and (b) reapply later when your residency situation has been resolved.

Sorry, if you disagree with my point of view, but I'm just sharing my 1yr+ observations of similar cases, all ending the same way.

 

[zyxLPR]

Specifically, there is Appendix 74-13 covering absences more than 6 months but less than one year, and the applicability of the 4yr+1day rule.

Dear boatbod - Thanks for the links. However, 8 CFR 316.5(c) (1) (ii) talks about "For period in excess of 1 year", whereas I was never outside US continuously for more than 1 year.

I am very confident that I would be able to convince the second IO or judge when I appeal. And I am preparing to appeal. I am just waiting for the official denial letter.

Can somebody, whose naturalization application was denied, tell me how long the USCIS has taken to send their decision letter after the interview date?

 

[zyxLPR]

I appreciate if anybody gives me (based on their own experience) precautions, helpful hints, dos and don'ts etc before/during the appeal (for N-400 denial) process.

Has anybody rebutted the presumption of abandonment based on >6months but <1yr? If so, what was the result?

 

[boatbod]

Dear boatbod - Thanks for the links. However, 8 CFR 316.5(c) (1) (ii) talks about "For period in excess of 1 year", whereas I was never outside US continuously for more than 1 year.

Yup, but guess what... USCIS doesn't apply each rule in isolation. They'll look at your overall travel history and say "ah, the applicant was living outside the US from Jan 05 to Jun 06 and made one brief visit back to the US in Nov 05 in order to circumvent the natz rules.". The basic premise for naturalization is that you are a US resident, making short visits abroad, not a foreign resident making short visits to the US.

I am very confident that I would be able to convince the second IO or judge when I appeal. And I am preparing to appeal.

Glad to hear you are confident, however I think you'll stand a better chance convincing a judge than a second IO. USCIS seems to apply their own interpretation of the rules, and this is what you are currently up against.

 

[valiko]

denial appeal

Yeah, I have this. My interview was end of september '06 and denial came end of june '07 -- look at my thread: http://www.immigrationportal.com/showthread.php?t=260564&highlight=naturalization+denial+appeal

 

[Jackolantern]

Short trips back to the US don't preserve "continuous residence" for naturalization purposes.

See http://immigrationportal.com/showpost.php?p=1759394&postcount=13

 

[immigrateful]

Short trips back to the US don't preserve "continuous residence" for naturalization purposes.

See http://immigrationportal.com/showpost.php?p=1759394&postcount=13

Originally posted by boatbod
zyxLPR, based on what you've told us so far, it sounds to me like you were working overseas on an indefinite basis until you decided to get the transfer back to the US. (Did you have any documentation from your employer to prove you were only going to be on a temporary assignment abroad?). You also discovered that flying back to the US for a short visit does nothing to preserve naturalization eligibility.

Jackolantern & Boatbod,

I sent my N-400 in recently and I am in a similar situation - I was visiting outside of the USA for 2 years. I always bought return tickets from the USA and came back before 6 months elapsed each time. I used to stay for a week or so and then resume my foreign visit due to unchanged personal circumstances. In the mean time I had taken up a job in India. I did not own any property in the USA because I could not afford it. I also sold off my car. I do have documentation (serious medical situation in my family and I was the primary caregiver). I did apply for a re-entry permit. I see no reason why USCIS should deny my application.

I don't mean to hijack this thread but I thought this was a similar situation related to CR and would be useful to future readers.

Thanks.

 

[Jackolantern]

Jackolantern & Boatbod,

I sent my N-400 in recently and I am in a similar situation - I was visiting outside of the USA for 2 years. I always bought return tickets from the USA and came back before 6 months elapsed each time. I used to stay for a week or so and then resume my foreign visit due to unchanged personal circumstances. In the mean time I had taken up a job in India. I did not own any property in the USA because I could not afford it. I also sold off my car. I do have documentation (serious medical situation in my family and I was the primary caregiver). I did apply for a re-entry permit. I see no reason why USCIS should deny my application.

Did you read the link in my above post? How is your case in any better shape than the guy who was denied in the example from the USCIS rule book?

Residence requirements for citizenship are stricter than what is required to maintain the green card. They almost certainly will deny your application.

Just because one trip of less than 6 months won't break continuous residence, don't make the mistake of thinking that 3 or 4 consecutive trips like that will maintain the continuous residence.

 

[immigrateful]

Did you read the link in my above post? How is your case in any better shape than the guy who was denied in the example from the USCIS rule book?

I read if just after posting here.

Residence requirements for citizenship are stricter than what is required to maintain the green card. They almost certainly will deny your application.

If even after reading it, I still feel I have not violated any law and still should not be denied citizenship. What happened to novi400 was probably more of an exception than the rule.

Just because one trip of less than 6 months won't break continuous residence, don't make the mistake of thinking that 3 or 4 consecutive trips like that will maintain the continuous residence.

I wanted to continue living here in the USA which I consider my home now. I did not have any alternative but to visit India over a 2 year period. I filed for a re-entry permit, tried to work from India for an American corporation but my current company would not allow that. I tried to find a job with a US corporation in the USA but could not find that. I have documentation related to my parents' health condition and I think I can reasonably argue that I did not intend to live in India permanently.

Why would an IO with a good understanding of the law and sufficient common sense deny my application for this reason alone?

 

[Jackolantern]

If even after reading it, I still feel I have not violated any law and still should not be denied citizenship.

You don't need to violate the law to be denied citizenship. Citizenship has certain criteria; if you don't meet that criteria your citizenship will be denied. You are not legally forced to apply for citizenship, nor to live your life according to the citizenship criteria (except for the minimum required to maintain the green card).

Why would an IO with a good understanding of the law and sufficient common sense deny my application for this reason alone?

Why would somebody with common sense think that spending a total of 6 weeks in the US out of a 2-year period is continuous residence for 2 years? If they follow the example in their rule book, you will be denied.

USCIS recognized that you did not intend to abandon your US residence, so they allowed you to keep your green card. But your US residence has been interrupted by your long absences, so it is not continuous for citizenship purposes. Citizenship uses stricter criteria. Wait until you have rebuilt your continuous residence and you should be fine. Otherwise, feel free to apply now and waste your money.

 

[immigrateful]

Why would somebody with common sense think that spending a total of 6 weeks in the US out of a 2-year period is continuous residence for 2 years? If they follow the example in their rule book, you will be denied.

That's because the adjudicators field manual states somewhere that CR is automatically broken for absences greater than 6 months. For absences lesser than 6 months (like mine), the IO needs to use his/her discretion in making a decision. I feel the IO should look at my situation and apply his discretionary authority to make a decision in my favor using common sense.

 

[Jackolantern]

That's because the adjudicators field manual states somewhere that CR is automatically broken for absences greater than 6 months. For absences lesser than 6 months (like mine), the IO needs to use his/her discretion in making a decision. I feel the IO should look at my situation and apply his discretionary authority to make a decision in my favor using common sense.

Explain why your case is any better off than the guy in the example in their rule book, even though you didn't maintain a home or lease an apartment in the US, and you worked for a non-US corporation overseas.

 

[immigrateful]

Explain why your case is any better off than the guy in the example in their rule book, even though you didn't maintain a home or lease an apartment in the US, and you worked for a non-US corporation overseas.

1. I applied for a re-entry permit (probably will not satisfy you and possibly also the IO )
2. I was the primary care give to my parent who was fighting a terminal disease.
3. I always purchased a return ticket from within the USA.
4. I live in the San Francisco Bay Area - housing here is expensive and I could not afford to own a house here.
5. I leased an apartment the moment it became clear that I could resume my life in the USA.
6. I made a genuine attempt to find a job with a US corporation allowing me to reside in India (to advance their business interests) while I took care of my parent.

I do not have documentation about my attempts to find a job that allowed me to stay in India while working for a US corporation (but I will obtain that documentation now)

 

[immigrateful]

Also the difference between the example you cite in this thread (http://www.immigrationportal.com/showthread.php?t=234301&page=2) and my situation is that my company did not send me for an overseas assignment. I quit voluntarily and specifically for performing my duties as a primary care giver to a parent, i.e., the motivation in continual visits to India was not related to job or business or something else I had control over - it was a medical situation in the family over which I absolutely had no control.