"Continuous residence" question

F

fSarah

New Member
Hi, my husband is a winner of the DV lottery 2014. We've already entered into the US in mid July 2014 (husband, kids and me) and "activated" our GCs, and after 3.5 weeks' visit went back to our home country in mid August.
I'm working for a global company, and am expected to be transferred to the US office in June 2015, so that's when we're planning to move to the US. Until then, I'm planning to continue work for the local office in my home country. My husband is self employed.
Putting aside for one moment the question of maintaining GC status, my questions concerns the naturalization "clock" of five years: will scheduling a one week trip to the US this coming January (2015), so that we won't have any absence longer than 6 months, make the nautralization period start at July 2014 insead of June 2015?
Appreciate your insight!
 
Absence >6 month but <1 year can break the continuous resident requirement except. USCIS usually only accept an N-400 application if this applicant shows that he still maintained his residence, means a rental property, bank accounts etc.

So assuming you entered the U.S. the first time July 17, 2014 I would schedule a trip arriving around January 5, stay for one week (would be Jan. 12) and make sure your final move is before July 12.
 
Thanks a lot Tazmania!

If I understand correctly, what you're saying is that as long as each absence is shorter than 6 months, it will not violate the "continuos residence" requirements, which is good news.

I noticed that on the N-400 (Part 7) they ask for the employers in the last 5 years. When filing this form 5 years from now, I will write the name and address of my current employer (which is legally a local company in my home country). Do you think this year would still "count" as part of the 5 years?
 
fSarah said:
Hi, my husband is a winner of the DV lottery 2014. We've already entered into the US in mid July 2014 (husband, kids and me) and "activated" our GCs, and after 3.5 weeks' visit went back to our home country in mid August.
I'm working for a global company, and am expected to be transferred to the US office in June 2015, so that's when we're planning to move to the US. Until then, I'm planning to continue work for the local office in my home country. My husband is self employed.
Putting aside for one moment the question of maintaining GC status, my questions concerns the naturalization "clock" of five years: will scheduling a one week trip to the US this coming January (2015), so that we won't have any absence longer than 6 months, make the nautralization period start at July 2014 insead of June 2015?
Appreciate your insight!
Click to expand...

It is an often repeated myth that keeping the absences from the U.S. under 6 months each is enough to maintain continuous residence for naturalization purposes. In fact, absences under 6 months can also break continuous residency and your situation is a textbook example.
To quote from the USCIS Naturalization Policy Manual:

"C. Breaks in Continuous Residence
An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.

Absences of more than 6 months but less than one year; and
Absences of one year or more.

In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence."

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

In my opinion, your continuous residence clock will only start when you actually move to the U.S. in June 2015.


 
Thanks a lot baikal3, that's very interesting!

What you're saying is that there's actually no point for me to plan a special travel that will "break" the absence into chunks that are shorter than 6 months, becuase my employer and address information in this year will probably be interpreted as evidencing that no "continuous residence" in the US was established... that makes sense.

However, since I'm starting to arrange my move to the US, I guess this is really a question of interpretation... are there people here who have experienced similar situation and can share their experience?
 
fSarah said:
Thanks a lot baikal3, that's very interesting!

What you're saying is that there's actually no point for me to plan a special travel that will "break" the absence into chunks that are shorter than 6 months, becuase my employer and address information in this year will probably be interpreted as evidencing that no "continuous residence" in the US was established... that makes sense.
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No, not exactly.
It is still a good idea to make several trips to the U.S., separated by relatively short intervals, before you actually move here in June 2015.
For one thing, you have to worry about preserving your LPR status (which is a separate naturalization requirement from continuing residence and physical presence). With one long absence (especially if it is over 6 months), a CBP agent at the port of entry might question you more closely and you might get into trouble. What you are doing now is not really consistent with maintaining an LPR status.
You don't own/rent a house or an apartment in the U.S., you don't currently have a job in the U.S., and you don't have any immediate family members in the U.S. But you do have all of these abroad. Nor have you actually resided (in the sense of having your primary home) in the U.S. since getting a green card. All these factors put you in a danger zone in terms of having a valid LPR status, in my opinion.
Even if you don't get any problems entering the U.S., the issue may still come back to bite you at the naturalization stage.
When an N-400 application is considered, the adjudicator will look from scratch at your compliance with having maintained a valid LPR status since getting a green card. The adjudicator may determine that you have not actually maintained a valid LPR status, in which case your application will be denied (although the green card is usually not revoked in such cases), regardless of the situation with the continuous residence and physical presence requirement. There have been cases of this sort reported in this board, where people are put in a paradoxical situation. Their green card is not revoked, but they are, in effect, ruled permanently ineligible for naturalization (unless they give up the green card, go abroad, and re-immgrate by getting a green card again). You don't what to end up in this kind of situation.

On the other hand, it is also true that many UCSIS adjudicators are fairly lazy and not very competent, and check compliance with the continuous residence and having maintained valid LPR status requirements in a very perfunctory way. So you might actually get away with having your N-400 approved if you apply for it 5 years from getting your green card, assuming that you don't have any absences longer than 6 months.

So there are good reasons to visit the U.S. several times, at relatively short intervals, before June 2015. If you can afford to rent an apartment or a house in the U.S. now or a little later (but well before June 2015), I'd consider doing that too.
 
baikal3 said:
When an N-400 application is considered, the adjudicator will look from scratch at your compliance with having maintained a valid LPR status since getting a green card. The adjudicator may determine that you have not actually maintained a valid LPR status, in which case your application will be denied (although the green card is usually not revoked in such cases), regardless of the situation with the continuous residence and physical presence requirement. There have been cases of this sort reported in this board, where people are put in a paradoxical situation. Their green card is not revoked, but they are, in effect, ruled permanently ineligible for naturalization (unless they give up the green card, go abroad, and re-immgrate by getting a green card again).
Click to expand...

But those cases where they become permanently ineligible for lack of status are only where the green card was obtained by mistake or fraud (i.e. was not eligible for it when it was approved), or the individual spent 12 consecutive months outside the US without appropriate documentation (reentry permit, military papers, etc.), which automatically invalidated the green card, and did not remedy the situation by obtaining a returning resident visa or explaining things at the port of entry.

Long trips of under 12 months may jeopardize the green card, but once having been admitted after a long trip like that, such trips which ended over 5 years before applying for naturalization can no longer be used as a basis to deny naturalization.
 
Jackolantern said:
But those cases where they become permanently ineligible for lack of status are only where the green card was obtained by mistake or fraud (i.e. was not eligible for it when it was approved), or the individual spent 12 consecutive months outside the US without appropriate documentation (reentry permit, military papers, etc.), which automatically invalidated the green card, and did not remedy the situation by obtaining a returning resident visa or explaining things at the port of entry.

Long trips of under 12 months may jeopardize the green card, but once having been admitted after a long trip like that, such trips which ended over 5 years before applying for naturalization can no longer be used as a basis to deny naturalization.
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What makes you think so? As I understand it, the naturalization requirement to having maintained valid LPR status applies to the entire period from first obtaining the LPR status to taking the naturalization oath. So why would they ignore the fact that an applicant did not maintain valid LPR status, even if that happened more than 5 years before filing N-400?
I have always assume that this was the reason that N-400 asks to list all foreign trips since becoming an LPR, and not just the foreign trips for the last 5 years.
 
baikal3 said:
What makes you think so? As I understand it, the naturalization requirement to having maintained valid LPR status applies to the entire period from first obtaining the LPR status to taking the naturalization oath. So why would they ignore the fact that an applicant did not maintain valid LPR status, even if that happened more than 5 years before filing N-400?
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Because trips of under 12 months do not invalidate status unless challenged at the port of entry, or later proven to be fraudulent (e.g. you told the officer at the POE you were gone for 4 months when it was really 10 months). Once they let you back into the US after a trip of under 12 months, without fraud and without having to see an immigration judge or otherwise instructed to take any additional steps to resolve your admission to the US, you are free and clear as far as that particular trip and your LPR status are concerned.

That trip may be used against you for denying naturalization, but only if it occurred within the past 5 years (or 3 years, if marriage-based naturalization).

The rules for continuous residence for naturalization purposes are not the same as maintaining residence for preserving LPR status. Breaking continuous residence for naturalization purposes doesn't mean you lost your LPR status due to that break in continuous residence.
 
My personal experience, Sarah: I "activated" my green card in May 2004, and stayed in the US until September 2004 (a little over three months), and just like you wasn't really living in the US, just staying at a friend's house for the summer. I then went back to my home country for 4 months. I really moved to the US in January 2005 until September 2005 (and again, went back to my home country for 4 months). I had 2 gaps of 4 months in my continuous residency (there was a 9-month period in the US between them).

It's a bit different than what you plan to do since I stayed 9 months after the 4 -month gap. I still used my original date of May 2004 when I applied for naturalization. I know it' s not exactly what you're going to do since you only plan to stay in the US for a week. The IO never raised any question, but at the same time I didn't go back to my home country for a job, and I wasn't necessarily considering my home country as my residence either (didn't have a house there etc.), just went back to finish school, and the second gap was more a vacation, and I had a few minor health issues as well.

In my opinion, what would raise a red flag with you is the fact that you're only staying 1 week, that might not look good for an IO.
 
In the last 5 years I have made several trips back to the UK due to weddings and my mothers sickness. Last two trips have been quite long I stayed in the UK from October to January, I had to come back to the UK in May and will be going back to the USA in October, just short of 6 months due to my mothers illness. My family, house (rent) are still in the USA. My job situation is in the air due to being absent the length of time> I have been with the same company for 16 years. Will this effect my continuous residence? I have been a resident since 1994 and took the usual once year vacation back to the UK.
 
Bayareabrit said:
In the last 5 years I have made several trips back to the UK due to weddings and my mothers sickness. Last two trips have been quite long I stayed in the UK from October to January, I had to come back to the UK in May and will be going back to the USA in October, just short of 6 months due to my mothers illness. My family, house (rent) are still in the USA. My job situation is in the air due to being absent the length of time> I have been with the same company for 16 years. Will this effect my continuous residence? I have been a resident since 1994 and took the usual once year vacation back to the UK.
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You've been a resident since 1994, and although your last two trips have been quite long, I wouldn't think that they are an issue at all. You're obviously living in the US. I don't think those two trips would raise an issue, but that's just my opinion.
 
I got my C in Sept 20111 through my wife (UC citizen). Since then, I made several trips to and from USA (9 in total). Two of which I stayed outside USA for 186 days and 197 days.

My wife a job at a US research institute recognized by US attorney general. I read that I am eligible for expeditious naturalization under 319 b (which waves physical residency requirement to be naturalized.. it is similar to naturalization of spouse of military personnels serving USA outside states).

Will those 2 trips be a problem when I apply for naturalization?

THanks
 
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