Continuous residence requirement question

M

medievalKnight

Registered Users (C)
A friend of mine is wondering whether he is in line with the continuous residence requirement and when he would be able to file his N-400. In fact, he got his green card on 02/2002, and made 3 trips outside the country:
Trip 1 length: 4 months
Trip 2 length: 2 months
Trip 3 length: 6 months 18 days
Did he break the continuous residence by staying more than 6 months during the last trip, or that should not be a problem? Any answers/suggestions are highly appreciated!
 
Maybe, maybe not - it depends on the circumstances of the trip and whether the three trips were taken back to back or spread over the 5 years. Give more details and I'll comment further.
 
boatbod said:
Maybe, maybe not - it depends on the circumstances of the trip and whether the three trips were taken back to back or spread over the 5 years. Give more details and I'll comment further.
Click to expand...
Thanks indeed for your reply! I don't think the trips were back to back. I would say the pace was a trip every year. During the 3th trip he applied for a travel permit document but he didn't use anyway since he ended up returing after 6 mo 18 days only.
 
The key is to show that a person was residing in the US at all times. What does it mean residing? This is very vague. My personal opinion not shared by INS or anybody - residence is where you are physically present.

But for INS purposes you have to show that you had life activities going on. It is helpful to show you had an address at all times even if you were renting the place from family or a friend. However if you had your "place of residence" at your friend's place then it seems you need more - at least that is what I gathered from my interview. At that time it is helpful that you had some employment ties in the US and that your trip abroad was temporary in nature. They also asked me about taxes - I had to file them when I was abroad. The woman asked me if I filed them on time - I was lucky that I did. Maybe for her - the fact that I filed taxes while abroad had some meaning. I also had a reentry permit but nobody asked for it - I am not sure what it does though. Reentry seems to help with preserving GC but does not protect your continuous residence. But maybe it has some relevance to establishing the temporary nature of your trip.

Also - I had other stuff that nobody talked about - but it maybe relevant if IO starts attacking you. Basically it would be nice to show that you had active bank accounts in the US, you paid for services in the US from US bank accounts (I had a cell phone for example that I paid for while abroad although it could not be used in Europe). Nobody asked - but in my personal opinion such things tend to establish at minimum that you had intention to return to the US. I also think that renewing drivers licence, paying US credit cards is a good thing.

Normally I would think that not establishing significant ties abroad is a must. Nobody talked about this though. For example buying a house to live in while being employed there might be construed as abondoning residxence in the US. But nobody ever talks about this - so I am not sure. Plus INS really doesn't know what you have abroad. Still in my case I made sure to give a US address everywhere and for example brought my car and drove it on US plates since I went abroad for temp purpose. This never came up at the interview. Still I think from logical standpoint - this could have come up.

It would be great not to have employment ties abroad. Even if you do have them - they have to be temporary. Don't get a contract for indefinite period. It does not make sense to get screwed over.

There was also talk about the fact that you have to be careful with filing form 2555 on your taxes. This way you get exemption. They do not like that you were a bona fide resident of some other country. But I think it is less of a red flag if you claim exemption based on physical presence. Most lawyers are not even aware of this requirement and INS never asked me for this. Hey - they did not ask me even for tax transcripts - but I heard from some people that they do that sometimes.

I think that being over 6 months is a red flag. Some people think that it is the same if you are gone for 5 months or 7 months - well at some point sb has to draw the line at what point the residence is broken. That is written in the law.

However if you are away for even 8 months broken down into 2 trips close to each other - you are bound to be asked about them. I would think it is still better to break down an 8 month trip into 2 than taking it at one time. At least in my personal opinion if you break it down into 2 trips - you were coming back to the US all the time - something that a tourist does not do. In the law they talk about the 6 month requirement.

Also because some of the things are subjective and not objective. Like when do you draw the line where you say the residence was broken? Surely in a case - where you sell your house, belongings, don't file taxes, get employment abroad for indefinite period, don't file for reentry, move all your money abroad, cancel credit cards etc. But then there is a wide grey area. So then you have to rely on the fact that IO is nice to you.

Another thing to keep in mind is that there is some limit to value of US citizenship. If I had any grey area I would not give up original citizenship. INS can and does strip people of US citizenship on a regular basis. I think the first 2 years are crucial. I heard that they even tried to strip a Microsoft employee of US citizenship for givinng some wrong address. If they had succeeded then US citizenship would truly mean nothing and would be like another GC or sthg like that.

----
Disclaimer:
I am not a lawyer. I have absolutely no legal training. I am a layman.
Do not rely on this advice.
 
There's some good advice in there namedude.

I'd also like emphasize that as well as specific laws (as spelled out in 8CFR), USCIS looks for evidence of a person's intent when they go abroad. This is where the law gets very vague and open to interpretation; namely, a person absent from the US for more than 6 months is presumed to have broken continuous residence unless they can prove otherwise. Naturally its easier to show this proof for shorter trips than longer ones...

Things that usually work in your favor:
- immediate relatives living in the US while you are abroad. (Would include spouse, parents, children and possibly also siblings.)
- mortgage/rental agreements, bank accounts, car payments, etc, etc.
- keeping possessions in storage (vs shipping them overseas)
- paying taxes on time
- medical bills/doctor letters while taking care of sick relative overseas
- overseas education with known end-dates
- known future commitments back in the US (e.g. signed up for college etc)

Things that cause issues:
- foreign employment with a non-US company
- foreign assignments and/or employment with no fixed end-date
- declaring yourself non-resident on your tax returns
- not filing tax returns
- selling your house and moving all your stuff abroad
- back to back trips "less than 6 months" as a means of skirting continuous residence rules.

So anyway, chances are you will be ok, but please go to the interview with sufficient supporting docs to meet the burden of proof that you didn't break residency.
 
I am also going to face the same issue for continues residency...
I am abt to apply for citizenship..have taken back to back 4-5months trips to London in 2003-2004 as i was newly married and my husband was working in London...
I dont know if INS is going to have any sympathy towards me being away from my husband to coverup for my long period of absence from the US...
anyways..i have to wait and see and pray a lottt...
There are actually 3 trips back to back of less than 6 months...and i have taken a total of 8 trips in last 5yrs:(
 
m_abraham12 said:
I dont know if INS is going to have any sympathy towards me being away from my husband to coverup for my long period of absence from the US...
Click to expand...

Well it really depends on the IO - some are understanding and will "flex" their interpretation of the rules in your favor, while some are downright obnoxious and seem to try especially hard to put up roadblocks.

Your case is probably going to hinge on whether you can present a strong picture that you were really living in the US and simply visiting your husband in London. Did you own a house or rent an apartment during that time period? Were you employed, and if so, was it by a US company?

It also helps if you've spent most of your time in the US since returning from those trips in 2003-2004.

Good luck.
 
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