Continous Residency

[goldsprinkle]

I acquired my citizenship last Sep 2012. Son who is now over 18 wants to apply under his own merit (5 year rule) but would like to seek an advice on the continuous residency requirement since he was outside the US for 325 days. Based on the information below, when would he qualify to apply?

Age last Mar 2012: 22
Date LPR: Sep 08, 2006
Dates outside the US Jun 10, 2007 to Apr 29, 2008 – Total of 325 days

What documents are needed for those applying under the 5 year rule?

 

[raevsky]

http://forums.immigration.com/showt...t-Over-6-month-Rule-Secondary-Evidence-Needed

 

[BigJoe5]

I acquired my citizenship last Sep 2012. Son who is now over 18 wants to apply under his own merit (5 year rule) but would like to seek an advice on the continuous residency requirement since he was outside the US for 325 days. Based on the information below, when would he qualify to apply?

Age last Mar 2012: 22
Date LPR: Sep 08, 2006
Dates outside the US Jun 10, 2007 to Apr 29, 2008 – Total of 325 days

What documents are needed for those applying under the 5 year rule?

After a long absence, the easy remedy is to wait 4 yrs and 1 day from re-entry and then apply for naturalization.

Look up and read the controlling regulations at 8 CFR 316.5 (c)(1)(ii). Go to www.uscis.gov on the laws tab.

4 years and 1 day have already passed at this point.

 

[baikal3]

I acquired my citizenship last Sep 2012. Son who is now over 18 wants to apply under his own merit (5 year rule) but would like to seek an advice on the continuous residency requirement since he was outside the US for 325 days. Based on the information below, when would he qualify to apply?

Age last Mar 2012: 22
Date LPR: Sep 08, 2006
Dates outside the US Jun 10, 2007 to Apr 29, 2008 – Total of 325 days

What documents are needed for those applying under the 5 year rule?

You need to provide more detailed information here regarding your son's 325 trip to get meaningful advice.
What exactly was he doing abroad? Where were his immediate family members (since he was a minor, this means his parents) at the time? What kind of ties did he retain to the U.S. during that trip? Etc.

Without that specific information, in principle he has three options:

1) He could try to apply now under the provisions of 8 CFR 316.5(c) (1) (ii), the so-called "4 years plus one day rule". See the text of 8 CFR 316.5(c) (1) (ii) at:
http://law.justia.com/cfr/title08/8-1.0.1.3.68.0.1.5.html
There is a Sept 1993 INS letter, listed as an appendix of the USCIS Adjudicator's Field Manual, which expresses the opinion that the 4 years plus one day rule does apply to trips between 6 months and one year in duration (like your son's trip). See the text of the letter here:
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-40527.html

Under this option he became eligible for naturalization on April 30, 2012.
If he does decide to use this option, I suggest that in part 2 of N-400 (basis of eligibility) he checks the box "D (Other)" and write there something like: 8 CFR 316.5(c) (1) (ii), 4 years plus one day rule.

Otherwise the IO may miss the possibility of applying 8 CFR 316.5(c) (1) (ii) to his application and treat it as a regular 5 year case.

2) If he had really strong ties to the U.S. during that trip (and that depends on the information you did not provide us), he may try to argue that that 325 days trip did not disrupt his continuous residency. In that case in part 2 of N-400 he'd check Box A. However, he'd need to have really good supporting evidence in that case.
Under this scenario he could also file N-400 now.

3) If he wants to be super-cautious, he could apply 5 years minus 90 days (or later) since his return from that trip, that is, apply in early February 2013 or later. In that case he would not need to prove continuous residency during that trip.

 

[goldsprinkle]

Thank you so much for your help. I brought my sons to the US under the K1/K2 Visa. When he graduated from High School in the US, he went back to home country to study for 1 semester and decided he wanted to continue his schooling here in the US. So his 325 days outside the US was spent attending school and social visits.

You need to provide more detailed information here regarding your son's 325 trip to get meaningful advice.
What exactly was he doing abroad? Where were his immediate family members (since he was a minor, this means his parents) at the time? What kind of ties did he retain to the U.S. during that trip? Etc.

Without that specific information, in principle he has three options:

1) He could try to apply now under the provisions of 8 CFR 316.5(c) (1) (ii), the so-called "4 years plus one day rule". See the text of 8 CFR 316.5(c) (1) (ii) at:
http://law.justia.com/cfr/title08/8-1.0.1.3.68.0.1.5.html
There is a Sept 1993 INS letter, listed as an appendix of the USCIS Adjudicator's Field Manual, which expresses the opinion that the 4 years plus one day rule does apply to trips between 6 months and one year in duration (like your son's trip). See the text of the letter here:
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-40527.html

Under this option he became eligible for naturalization on April 30, 2012.
If he does decide to use this option, I suggest that in part 2 of N-400 (basis of eligibility) he checks the box "D (Other)" and write there something like: 8 CFR 316.5(c) (1) (ii), 4 years plus one day rule.

Otherwise the IO may miss the possibility of applying 8 CFR 316.5(c) (1) (ii) to his application and treat it as a regular 5 year case.

2) If he had really strong ties to the U.S. during that trip (and that depends on the information you did not provide us), he may try to argue that that 325 days trip did not disrupt his continuous residency. In that case in part 2 of N-400 he'd check Box A. However, he'd need to have really good supporting evidence in that case.
Under this scenario he could also file N-400 now.

3) If he wants to be super-cautious, he could apply 5 years minus 90 days (or later) since his return from that trip, that is, apply in early February 2013 or later. In that case he would not need to prove continuous residency during that trip.