Confused about Physical Presence requirements

A

alleygator2142

New Member
Please bear with me me if this is confusing and a little long-winded, I will try and explain as best as I can

- Got GC on 11 Nov 2004
- Traveled on 4 business trips between then and Apr 2006, staying outside of the US for a total of 66 days
- Starting Apr 2006, had to spend time overseas for a while to take care of ailing mother
- Made sure we returned to the US before 6 months had passed in any one trip (to maintain 'continuous residence' condition)
- Returned permanently to US on 14 Feb 2009, having been out of the country for a total of 944 days from Apr 2006 to Feb 2009
- 5 yrs on GC completed on 11 Nov 2009. Days spent in US at this time - 816
- 913 days present in US on GC completed by Apr 2010

HOWEVER, when I read the law and do the qualification worksheet for eligibility, it asks me to calculate days spent in US in "THE LAST 5 YEARS" from the date of filing. That means I can only count days from (say) Apr 01 2010 to 5 yrs back, which is Apr 01 2005. Which gives me only 816 days and therefore makes me INELEGIBLE??? Am I reading this right?

Can someone please clarify?

If yes, then I am ineligible for a long time (almost 14 months) as all the time spent in the US right after getting the GC is progressively wasted until I cover some of the days I spent outside the US.

Also, when you count the days spent in/out of the US, I did a search and found that you get full credit for any day partially spent in the US (i.e. the day you traveled in or out of the US). Is this correct?

Really appreciate any answers, will also post this question on the next CC with Rajiv.

Thanks
AG
 
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alleygator2142 said:
- Got GC on 11 Nov 2004
- Traveled on 4 business trips between then and Apr 2006, staying outside of the US for a total of 66 days
- Starting Apr 2006, had to spend time overseas for a while to take care of ailing mother
- Made sure we returned to the US before 6 months had passed in any one trip (to maintain 'continuous residence' condition)
- Returned permanently to US on 14 Feb 2009, having been out of the country for a total of 944 days from Apr 2006 to Feb 2009
- 5 yrs on GC completed on 11 Nov 2009. Days spent in US at this time - 816
- 913 days present in US on GC completed by Apr 2010

HOWEVER, when I read the law and do the qualification worksheet for eligibility, it asks me to calculate days spent in US in "THE LAST 5 YEARS" from the date of filing. That means I can only count days from (say) Apr 01 2010 to 5 yrs back, which is Apr 01 2005. Which gives me only 816 days and therefore makes me INELEGIBLE??? Am I reading this right?

If yes, then I am ineligible for a long time (almost 14 months) as all the time spent in the US right after getting the GC is progressively wasted until I cover some of the days I spent outside the US.

Also, when you count the days spent in/out of the US, I did a search and found that you get full credit for any day partially spent in the US (i.e. the day you traveled in or out of the US). Is this correct?
Click to expand...

You are absolutely right in your understandings. If CIS takes your recommended formula, someone can take a green card, then spend 3 months per year in US and hence become eligible in 10 years, (by making a 45 day trip after every 4.5 months). No, but it does not work this way. The expectation with "permanent resident card" is that you are resident in US, with some leeway given for absences.

If you just scan the last 2-3 pages of this forum, you will find multiple examples of people discussing continuous residence - it is a fallacy that making trips shorter than 6 months will avoid triggering the continuous residence issue. It is more subjective than mathematical.

Yes, you will get full credit for partial days. Only exception we saw recently was when someone made a same-day return trip to Bahamas and the IO said that counts as 1 day absence. However, I do not think people will have so many 1-day trips to make a difference either way.

While you can hope to argue / justify and convince an IO about the continuous residence, you do not have enough days in the last 5 years to pass the physical presence test. Waiting is the only option.
 
Appreciate your replies gents, pretty sure you are right. Will cross check with Rajiv just to be certain.

WRT continuous residency, the rules are pretty black and white are they not? Don't stay outside of the US for more than 6 months, file your taxes, maintain residence, bank accounts and services (all of which I have done). But seeing as you guys takl about pages worth of discussion, the reality must be more subjective.

Thanks again.
 
alleygator2142 said:
WRT continuous residency, the rules are pretty black and white are they not? Don't stay outside of the US for more than 6 months, file your taxes, maintain residence, bank accounts and services (all of which I have done). But seeing as you guys takl about pages worth of discussion, the reality must be more subjective.
Click to expand...

Can you please point to these black and white rules?
 
cafeconleche said:
I think it's possible to argue about continuous residence, but physical presence is black and white, really.
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You can argue about continuous residence, but only a few people are successful with the argument.

(Without making a judgment on OP's ailing mother... )
Almost everyone in this situation seems to either have an ailing mother (rarely a father) who needs a lot of care for several months per year but somehow can fend for herself for their 45-day trip to the US every 5 months,
or
They went to their home country and became too sick to live in the US (somehow they were OK to sit for hours on long flights to the US every six months, but the medical care in the US is so bad that only their home country could 'treat' them properly).

Not saying that there aren't genuine cases for each of the above scenarios, but just to let you know that if we've seen these reasons often enough on these forums, the IOs probably have these listed as 'use cases' in their training manual.
 
alleygator2142 said:
Please bear with me me if this is confusing and a little long-winded, I will try and explain as best as I can

- Got GC on 11 Nov 2004
- Traveled on 4 business trips between then and Apr 2006, staying outside of the US for a total of 66 days
- Starting Apr 2006, had to spend time overseas for a while to take care of ailing mother
- Made sure we returned to the US before 6 months had passed in any one trip (to maintain 'continuous residence' condition)
- Returned permanently to US on 14 Feb 2009, having been out of the country for a total of 944 days from Apr 2006 to Feb 2009
- 5 yrs on GC completed on 11 Nov 2009. Days spent in US at this time - 816
- 913 days present in US on GC completed by Apr 2010

HOWEVER, when I read the law and do the qualification worksheet for eligibility, it asks me to calculate days spent in US in "THE LAST 5 YEARS" from the date of filing. That means I can only count days from (say) Apr 01 2010 to 5 yrs back, which is Apr 01 2005. Which gives me only 816 days and therefore makes me INELEGIBLE??? Am I reading this right?

Can someone please clarify?

If yes, then I am ineligible for a long time (almost 14 months) as all the time spent in the US right after getting the GC is progressively wasted until I cover some of the days I spent outside the US.

Also, when you count the days spent in/out of the US, I did a search and found that you get full credit for any day partially spent in the US (i.e. the day you traveled in or out of the US). Is this correct?

Really appreciate any answers, will also post this question on the next CC with Rajiv.

Thanks
AG
Click to expand...
The statutory period for physical residence requirement is based on the previous 5 years before you apply (5 year rule) or previous 3 years before you apply for marriage based application.

The statutory period for continuous residence is based on the previous 5 years before you apply all the way up to your oath, or previous 3 years before you apply and up to oath for marriage based application.

In the period between April 2006 and February 2009 (roughly 1040 days, you spent 944 days outside the US). This will likely be seen as a break in continuous residency requirement since the majority of your time was spent outside US despite you returning every 6 months.

This being said, not only do you not meet physical presence requirement you likely don't meet continuous residency requirement as well due to back and forth travel for trips just under 6 months.
 
GungaDin said:
You can argue about continuous residence, but only a few people are successful with the argument.
Click to expand...

I think Cafe was agreeing with you saying physical presence is more black and white than continuous residence.

Anyway, full disclosure... I actually know someone who was successful in justifying continuous residence "while having" a sick mother in India to take care of. But that is not for me to advice, firstly because I am not as smart as his/her lawyer, and secondly because since some of that will be either fully or borderline illegal. I also think that within these scenarios where someone is short of continuous residence, there are some cases which are outright denial candidates, some are borderline and some more advantageous to applicant. But their resolution is not as black and white as some IOs will be more considerate than others, and some applicants will be more smarter than others, and then lastly some of it is pure luck because of rules being hard to define (as compared to physical presence).
 
alleygator2142 said:
Appreciate your replies gents, pretty sure you are right. Will cross check with Rajiv just to be certain.

WRT continuous residency, the rules are pretty black and white are they not? Don't stay outside of the US for more than 6 months, file your taxes, maintain residence, bank accounts and services (all of which I have done). But seeing as you guys takl about pages worth of discussion, the reality must be more subjective.

Thanks again.
Click to expand...

Continuous residence is subjective. You can usually make a case if you are not out of the US for more than 6 months in any 12 month period, but once you cross that threshold, its pretty hard to convince the IO that your primary place of residence is the US when you actually stayed in the country for less than half the time during a specific year-long period.
It is easier to defend this if you travel a lot to different countries lets say Canada 1 month, India 2 months, UK 1 month,Canada 1 month, Germany 1 month, France 1 month, US 5 months. (you can argue that the US is your primary residence) but if the non-us trips are to a single country, (India 5 months, US 1 Month, India 5 months, US 1 month) then it becomes very difficult to convince the IO that you actually reside in the US.
IOs look for patterns. The patterns are for residence in the US to establish whether you're just visiting the US or actually living here.

We've heard that the IOs use 3 months as a ballpark number to determine whether you initially established permanent residence. I wouldn't be surprised if they used this same 3 month window to ascertain whether you are living in the US or just visiting. I.e. Stay in the US after overseas trips < 3 months = visiting the US, if you are in the US > 3 months after each overseas trip, then you live here.
(I have no real information on this 3-month window, but if you're in the US for more than 6 months in every 12 month window, it becomes very difficult for the IO to prove that you live somewhere else - unless of course you go ahead and take up a job overseas which would tilt the balance a little against your US residence )
 
sanjoseaug20 said:
I think Cafe was agreeing with you saying physical presence is more black and white than continuous residence.

Anyway, full disclosure... I actually know someone who was successful in justifying continuous residence "while having" a sick mother in India to take care of. But that is not for me to advice, firstly because I am not as smart as his/her lawyer, and secondly because since some of that will be either fully or borderline illegal. I also think that within these scenarios where someone is short of continuous residence, there are some cases which are outright denial candidates, some are borderline and some more advantageous to applicant. But their resolution is not as black and white as some IOs will be more considerate than others, and some applicants will be more smarter than others, and then lastly some of it is pure luck because of rules being hard to define (as compared to physical presence).
Click to expand...

I hear you. When I first arrived in the US 20 years ago, I was shocked to realize that a simple photocopy of a document (in my case, my Bachelors degree) was sufficient proof of my degree. Not certified/notarized, just a photocopy.
I commented to several people that it takes about 10 minutes to successfully forge a photocopy (put someone else's name on a certificate) and that the US was just too trusting in that people won't lie/forge documents.
Unfortunately, some people will take advantage of the situation, but all in all, I think we're all better off with people being honest than having to get each document notarized because some people started gaming the system.
 
Bobsmyth said:
This being said, not only do you not meet physical presence requirement you likely don't meet continuous residency requirement as well due to back and forth travel for trips just under 6 months.
Click to expand...

Wow. Lots of answers after, so here goes.

Hard not to take umbrage about the remarks about my mother's ailment, but I am sure no offense is intended by responders, so none taken. I will probably take in doctor reports as well as hospital admission records to prove my point in the interview, but that's a bridge I'll cross later.

With regards to continuous residency, the law states only 2 clauses which automatically render the condition broken,

"8 C.F.R. PART 316—GENERAL REQUIREMENTS FOR NATURALIZATION

316.5...
(c) Disruption of continuity of residence—(1) Absence from the United States—
(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under §316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service.

(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. "

I do not fall under either category. Also, throughout my time abroad, we filed taxes for the period, maintained all our bank accounts, investments and even telephone services. So though there is an element of subjectivity (burden of proof on me) I don't see why I likely don't meet continuous residency conditions. All IMHO of course.

In any case, it is pretty clear that I should simply wait until late into 2011 to apply, and I will as I am not trying to pull the wool over INS's eyes ... :-)

Thanks for the help and comments.
 
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alleygator2142 said:
I do not fall under either category. Also, throughout my time abroad, we filed taxes for the period, maintained all our bank accounts, investments and even telephone services. So though there is an element of subjectivity (burden of proof on me) I don't see why I likely don't meet continuous residency conditions.
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Did you maintain a primary abode in the US (rent/mortgage, utility payments) during your time outside the US?
 
The rules for absences between 6 months and 1 year and absences of over 1 year are more or less clear, of course subject to interpretation in certain situations. There are no set rules that I know of that cover back to back trips under 6 months but we all know that in reality, immigration officers look at the big picture and see whether there are any indications of abandonment of primary residence or disruptions in continuous residence, and it certainly is within their authority to make these determinations. I however would be willing to bet that in the absence of a clear regulation, a sympathetic immigration judge or federal court adjudicating a denial of naturalization based on multiple trips under 6 months can rule in favor of the applicant based on illegal USCIS rulemaking. Most applicants would probably just reapply instead of challenge the decision.
 
USCIS looks at back to back trips just under 6 months as a potential break in continuous residence since it's given that applicants would try to skirt the 6 month rule by returning to US just under 6 months.
 
sunny808 said:
I however would be willing to bet that in the absence of a clear regulation, a sympathetic immigration judge or federal court adjudicating a denial of naturalization based on multiple trips under 6 months can rule in favor of the applicant based on illegal USCIS rulemaking.
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There would be no illegal USCIS rulemaking. Continuous residence (and residence in general) is a question of fact and intent, and the courts have held that USCIS has the ability to determine intent based on the applicant's actions, not just a black and white regulation. Additionally, all that USCIS would be doing is making a rebuttable assertion that the applicant has broken continuous residence, which the applicant can provide evidence to contradict. If the applicant cannot do so, USCIS has made no rule, just raised a legitimate assertion which could not be rebutted.
 
A prominent NYC immigration attorney has an article on http://bit.ly/bTKVuC relating to naturalization. In the article, he notes the following with respect to continuity of residence: "Some examiners improperly club two back to back lengthy trips out of the U.S. of less than 180 days."

I'm curious to know what his experience is on this matter, and what legal arguments he bases his statement from.
 
sunny808 said:
A prominent NYC immigration attorney has an article on http://bit.ly/bTKVuC relating to naturalization. In the article, he notes the following with respect to continuity of residence: "Some examiners improperly club two back to back lengthy trips out of the U.S. of less than 180 days."

I'm curious to know what his experience is on this matter, and what legal arguments he bases his statement from.
Click to expand...

#1. That lawyer is not going to come to this forum and explain. You need to ask him.

#2. I think his perspective and CIS perspective might be different. He says CIS is denying too harshly (to put simply). Yes, but are they doing it to the people who have just 2 lengthy trips or to the people who have more than 2 such trips. In his words ... he says some examiners improperly club 2 back to back lengthy trips ... I would say CIS will improperly club 2 trips ... I would say they would "properly" club 3, 4 or 5 such trips, and be more circumspect when it was just 2 back to back trips over a 5 year period. Wasn't recently there a post by someone who did this for 3 years - almost 6-7 trips in that case. It will be very hard to call that "improper". [ Just realized I am talking about this thread only...]
 
All I'm asking, and as the OP is trying to find out, under what authority would the USCIS deny naturalization based solely on back-to-back trips under 6 months? The statute, INA 316 and the regulations are clear about trips between 6 months and 1 year and that the burden of proving no break in continuous presence is on the applicant. Under what authority does USCIS have to lower the threshold in back-to-back trips under 6 months or shift the burden on the applicant to disprove a break when the regulations are silent?

Clearly, USCIS needs to have a rule that permits them to shift the burden on an N400 applicant to overcome a presumption of a break in residence in cases like these (back to back, less than 6 month trips). And yes, OP's case is not the best to challenge a denial because even physical presence will not be met in this case. 3, 4, or 5 back to back trips would be more straightforward from a denial point of view because that would more likely come closer to the limits for physical presence and a denial would more likely come under that requirement.

That's all my point is- USCIS needs to establish clearer rules because people rely on these rules and they need to have notice that back-to-back trips may jeopardize their naturalization qualifications instead of thinking that they would be in fine shape if they keep their trips inside of 6 months irrespective of how many trips they make.
 
sunny808 said:
All I'm asking, and as the OP is trying to find out, under what authority would the USCIS deny naturalization based solely on back-to-back trips under 6 months?
Click to expand...

Let's identify some sample cases where the person had exactly 2 trips and then look at the other aspects of that case. If you can find some samples from this forum, or from outside, please list them here, and let's go from there.
 
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