continuous residence - more than 6 months but less than a year

O

ODoyle

New Member
Hi,
I have been trying to figure calculate continued residence and i can't find a answer to my situation. I have already filed for citizenship once and was denied because i stayed outside US for more than 6 months but less than a year and hence abrupted my continued residence. I didn't know about this at the time i applied.

But i have a question now, I took a trip outside US which lasted 11 months. What im trying to figure out is whether the last 6 months of my 11 month trip do count towards my continued residence? or lets say last 5 months and 29 days.

From what i have read and understand is that in 5 years prior to your citizenship application, you shouldn't have taken a trip for more than 6 months outside US. Now If i were to count my continued residence from last 5 months of that trip, will it only count as a 5 months trip.

eg. I left United States in July 2005 and came back in June 2006. now will I be eligible to apply for citizenship in June 2011 or January of 2011 ( counted last 5 months of my trip in my continued residence)

I have been looking to find an answer everywhere but no luck. So if someone has any knowledge or experience and could help me out, that would be higly appreciated.
Thanks!
 
Actually if you came back June 2006, you can file now. There is a rule wherein you can file 4 years and 1 day after you return. As long as you did not maintain a pattern of living abroad, you should be able to go ahead and file. You should declare this intent of using the 4 year 1 day rule in your cover letter you send.

However, in general, you can not break trips like that. In this case you are lucky.

Last, if this is the only thing you are worried about, it is now 4.5 years back. Most likely (but you can never be sure), they will not make it an issue unless they saw you were always on the borderline trying to beat the rule dates.
 
When fulfilling a 5 (or 3) year period with a break in residence, 8 CFR 316.5(c)(1)(ii) allows you to file 4 (or 2) yrs and 1 day AFTER the significant break, often referred to as the "remedy".
 
No, That was my only long trip outside US. I have take few trips but they have been very short.

About the 4 year 1 day rule, doesn't that apply to cases where you leave for more than a year but come back within 2 years with Re-entry Permit?

Thanks for replying!
 
ODoyle said:
About the 4 year 1 day rule, doesn't that apply to cases where you leave for more than a year but come back within 2 years with Re-entry Permit?
Click to expand...

Nope, this comes into play when you broke your continuous residence. Re-entry permit is only to allow you to return after a break of 1 year. Maintaining CR is a separate issue.
 
ODoyle said:
No, That was my only long trip outside US. I have take few trips but they have been very short.

About the 4 year 1 day rule, doesn't that apply to cases where you leave for more than a year but come back within 2 years with Re-entry Permit?

Thanks for replying!
Click to expand...

There are two categories of disruptive breaks in residence for natz: 1.) 6+ months but less than 1 year, OR 2.) 1 year or more.

There is only one remedy that applies to both types of break.

The remedy will NOT apply to a 6 + month break if after waiting 4 yrs and 1 day after the break, you still have not reached the statutory minimum of 4 yr and 9 months per application of INA 334(a)'s 3 month early filing allowance to INA 316(a)'s 5 year requirement. In that case, you have to wait it out, but the regulatory wait time will also have been fulfilled. The statute is controlling and the regulation takes a back seat to the INA.
 
Last edited by a moderator:
baikal3 said:
Incorrect, the 4 years plus 1 day rule applies ONLY to the cases where the last significant absence was one year or longer.
The text of 8 CFR 316.5(c)(1)(ii) makes that quite clear, see http://law.justia.com/us/cfr/title08/8-1.0.1.3.68.0.1.5.html
Click to expand...

OK, I might be wrong, but interesting that both you and BigJoe pointed to the same regulation and gave totally different answer.
I do not know the regulations by heart, but here's my reasoning.
If CIS determines that CR has been broken, it causes an issue.
The 4 year 1 day rule is the remedy (as Joe says).
I do not think it matters which path you came from, once it is proven you broke CR, you broke CR.
Then you go to the next step on how to re-establish CR. And I contend this step could be the same in both cases.
As I said earlier, I might be wrong. It will help if you can point to something clearer than a hard to read law.
 
The text of 8 CFR 316.5(c)(1)(ii) dealing with the 4 year + 1 day rule reads:

"(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. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resume permanent residence."

Note the opening phrase: "For period [of absence] in excess of one (1) year."
Pretty clearly, based on the plain language of the statute, the provision described in 8 CFR 316.5(c)(1)(ii) applies only to absences in excess of 1 year. I do not see any room for a different interpretation here.

The absences of less than 1 year but more than 6 months are covered by a different paragraph, namely 8 CFR 316.5(c)(1)(i).
 
Since this thread topic related to continuous residency I followed the same thread to save space on this forum..anyway I am sorry if I am overlaying someones questions,it's just that people like you might be looking these topics similar at same time..

Appreciate if somecab give me response to what attorneys said for point1 and point2..
 
baikal3 said:
On what basis do you take the opposite view?
Click to expand...

#1. Many of these links talk about a CIS memorandum. It has precedence value, although I am sure it can be challenged as being against the law, but that is only if it goes to court.
#2. I read this law as vague. If a remedy is available for breaking CR in one case, it is just omitted in the other case without disqualifying it. I equate it to a typo, which can be fixed by supreme court or congress, once the issue gets there.
#3. From whatever I read, it is ambiguous and I think a CIS officer might be convinced to its applicability.
 
FROM: http://www.uscis.gov/portal/site/us...7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=afm

Adjudicator's Field Manual - Redacted Public Version \ Appendices \ Appendix 74-13 Continuity of Residence for Naturalization Purposes.
--------------------------------------------------------------------------------
Appendix 74-13 Continuity of Residence for Naturalization Purposes.

The following is the text of a letter from the Chief of the Naturalization and Special Projects Branch of the Office of Adjudications dated September 23, 1993:

Kiblan & Battles
Attorneys and Counselors at Law
1420 Beverly Rd., Suite 340
McLean, VA 22101

ATTN: Ms. Malea Kiblan

Dear Ms. Kiblan:

Your letter to Mr. Lawrence J. Weinig, Assistant Commissioner, Adjudications, has been referred to me since it concerns a naturalization matter.

You have asked for an advisory opinion in cases where a naturalization applicant has been determined to have broken his/her continuity of residence for naturalization purposes because of an absence of more than six (6) months but less than one (1) year, pursuant to the language in Section 316(b) of the Immigration and Nationality Act.

Specifically, you would like to know if the first date he/she will be eligible to reapply for naturalization will be four (4) years plus six (6) months from the date of reentry or four (4) years plus one (1) day from reentry.

The correct date would be four (4) years plus one (1) day. This is explained in 8 CFR 316.5(c) (1) (ii).

I apologize for the delay in responding to your letter but, I hope that this information has been of assistance.

Sincerely,
**********************************************
It should be noted that the regulatory remedy would not apply to the shorter break described in 8 CFR 316.5(c)(1)(i) in a situation where its application results in a countinuous lawful permanent residence period that is still below the statutory minimum of 4 (or 2) years and 9 months when one applies early based on the 3 month early filing authority of INA 334(a) being used in conjunction with the 5 year statutory period of INA 316(a) or the 3 year period statutory period of INA 319(a). In such a situation one must simply wait it out until reaching 4 (or 2) years and 9 months, however, in so doing, the regulation shall have also been fulfilled (and more) without reaching beyond the scope of the statute.

The regulation as promulgated by the executive department agency is secondary to the actual statute as passed by Congress under its Constitutional authority in Article I, Section 8 "Powers of Congress", "The Congress shall have Power.........To establish an uniform Rule of Naturalization,....."

In the vast majority of cases, the simple application of the remedy is suitable as the vast majority of applicants do not merely touch base in the U.S. and immediately depart abroad for a period of between 6 and 9 months. In a situation where this does happen, the individual is often a special case that is coverd under some other very specific statutory provision. U.S. Military members and families or U.S. Civilian Government employees and families, missionaries and families, or specific International Organization employees and families might fit this description.
 
baikal3 said:
Incorrect, the 4 years plus 1 day rule applies ONLY to the cases where the last significant absence was one year or longer.
The text of 8 CFR 316.5(c)(1)(ii) makes that quite clear, see http://law.justia.com/us/cfr/title08/8-1.0.1.3.68.0.1.5.html
Click to expand...

Would you force a person who broke their residence with a 6 month break to wait 4 years and 3 months, 4 years and 6 months, 4 years and 9 months, or a full 5 years to become eligible to file for naturalization after returning to the U.S.? Why should the person who disrupted their residence with the shorter break be penalized more severly than the person with the longer break?

8 CFR 316.5 has 4 paragraphs (a) - (d). (c)(i) is included in the sentences in (c)(ii) that begin "An applicant described in this paragraph who must satisfy a ........"

(c)(i) refers to "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 ....

(c)(ii) refers to "...,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.
 
Last edited by a moderator:
I still say the law is ambiguous since the details about 4 year 1 day are given in the second para whereas what they needed was to put a "para break". I agree that the penalty for a shorter trip seems more severe than the penalty for a longer trip and that's not what was intended.

Given that the law gives the applicant a chance to prove CR was not broken, I guess the way for a considerate and knowledgable IO is to declare him/herself satisfied to this aspect of CR and approve the case ... if they were fine with rest of the application.
 
You must log in or register to reply here.
Top