Continuous residence when to apply for citizenship

[masters]

I was issued permanent resident card on November 18 2001. When can I apply for us citizenship?

My record of Travel Out of US are as follows:
1. Left US on July 11 2002 and arrived to US may 28 2003 (out of us 11 months)
2. Left US on oct 11 2003 and arrived to US nov 3 2003 (out of us 3 weeks)
3. Left US on jan 11 2005 and arrived to US mar 6 2005 (out of us 9 weeks)
4. Left US on may 17 2006 and arrived to US sep 02 2006 (out of us 4 months
5. Left US on may 15 2007 and arrived to US sep 07 2007 (out of us 4 months)

So when can I apply for us citizenship

 

[boatbod]

Under the 4yr+1day rule, your date was May 29, 2007.
Under the 5yr-90day rule, your date would be Feb 28, 2008.

Allow a few extra days, just in case USCIS math isn't the same as MS Excel.

 

[Bobsmyth]

Under the 4yr+1day rule, your date was May 29, 2007.
Under the 5yr-90day rule, your date would be Feb 28, 2008.

Allow a few extra days, just in case USCIS math isn't the same as MS Excel.

The 4yr +1day rule only applies to travel outside the US for more than 12 months and less than 2 years (with re-entry permit) and therefore doesn't apply in this case.

Correction:He could have applied on Aug 18, 2006 provided that he proves that he did not intend to break continuous residence during 11 month trip with supporting documentation.

 

[Jackolantern]

The 4yr +1day rule only applies to travel outside the US for more than 12 months and less than 2 years (with re-entry permit and N-470) and therefore doesn't apply in this case.

Actually, the 4 years + 1 day rule applies if continuous residence has been broken, even if it was broken by less than 12 months of absence from the US. But it cannot be used to get citizenship in less than 5 years after GC approval.

If the 11 month trip mentioned by the poster is deemed to NOT have broken continuous residence, eligibility to apply would have already happened at November 18, 2006 minus 90 days.

 

[Bobsmyth]

Actually, the 4 years + 1 day rule applies if continuous residence has been broken, even if it was broken by less than 12 months of absence from the US. But it cannot be used to get citizenship in less than 5 years after GC approval.

I based my answer on the fact that I found no reference of the 4 year +1day rule applying to absences of less than 12 months but more than 6 months in 8 C.F.R. § 316.5(c)(1)(i). The 4 year + 1 day rule is only mentioned in 8 C.F.R. § 316.5(c)(1)(ii) which deals with travel more than 1 year but less than 2 years.
What reference are you using to conclude that the 4 years + 1 day rule can be used for absences less than 12 months but more than 6 months?

 

[Jackolantern]

I based my answer on the fact that I found no reference of the 4 year +1day rule applying to absences of less than 12 months but more than 6 months in 8 C.F.R. § 316.5(c)(1)(i). The 4 year + 1 day rule is only mentioned in 8 C.F.R. § 316.5(c)(1)(ii) which deals with travel more than 1 year but less than 2 years.
What reference are you using to conclude that the 4 years + 1 day rule can be used for absences less than 12 months but more than 6 months?

The CFR says:

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.

It boils down to the meaning of "paragraph" in the phrase "An applicant described in this paragraph". I interpreted it to mean a "legal paragraph", which is specified with the legal paragraph symbol §, not a literary paragraph. So "this paragraph" would refer to the entire text under § 316.5. If they were only referring to those who stayed outside the US for a year they would have written "the previous sentence".

I am not a lawyer and my interpretation could be wrong, but if I am wrong it leads to the nonsensical situation where somebody who stayed outside the US for longer than a year would be given an advantage in being allowed to apply sooner than somebody else in similar circumstances who stayed out for more than six months but less than a year.

In any case, whatever the correct interpretation is, the original poster can send in the application tomorrow.

 

[boatbod]

The appendices to the Adjudicator's Handbook also includes a USCIS memo stating categorically that the 4yr+1day rule applies even with absences less than 1 yr.

 

[Bobsmyth]

The appendices to the Adjudicator's Handbook also includes a USCIS memo stating categorically that the 4yr+1day rule applies even with absences less than 1 yr.

That interpretation of 4 yr +1 day rule is not logical as it leaves open the possibility of someone who obtains their GC to leave the county immediatly for 6 months and then be eligible to apply for citizenship 4 yrs +1 day upon their return. This would give the applicant a 6 month time advantage over someone who didn't break continuous residence .

 

[Jackolantern]

That interpretation of 4 yr +1 day rule is not logical as it leaves open the possibility of someone who obtains their GC to leave the county immediatly for 6 months and then be eligible to apply for citizenship 4 yrs +1 day upon their return. This would give the applicant a 6 month time advantage over someone who didn't break continuous residence .

No it doesn't. You still need 5 years of continuous residence ... the 4 years + 1 day rule comes about because you get credited with up to 364 days of continuous residence for the long trip you spent outside the country, thus leaving 4 years and 1 day to complete the 5 years. But continuous residence can only be counted for time that you spent as a permanent resident, so somebody who left for 6 months within their first year of GC cannot be credited with the full 364 days because it would cut back into their pre-GC period.

 

[boatbod]

It may not necessarily make logical sense, but it is part of USCIS adjudication procedure...

 

[Bobsmyth]

No it doesn't. You still need 5 years of continuous residence ... the 4 years + 1 day rule comes about because you get credited with up to 364 days of continuous residence for the long trip you spent outside the country, thus leaving 4 years and 1 day to complete the 5 years.

I have yet to see a reference that states that you get credited up to 364 days for time spent outside the country less than 12 months but more than 6 months. All the references I have seen (apart from a 1993 INS correspondence letter) state that the last (not up to) 364 days of your travel is credited for time spent outside the country more than 1 (continuous) year.
The M-476 instructions make it clear that only travel more than 1 year is credited if you return within 2 years:
What if I was outside the United States
for 1 year or longer? In almost all cases,
if you leave the United States for 1 year or
more, you have disrupted your continuous
residence. This is true even if you have a
Re-entry Permit.
If you leave the country for 1 year or
longer, you may be eligible to re-enter as a
Permanent Resident if you have a Re-entry
Permit. But none of the time you were in
the United States before you left the country
counts toward your time in continuous
residence.
If you return within 2 years, some of your
time out of the country does count. In
fact, the last 364 days of your time out of
the country (1 year minus 1 day) counts
toward meeting your continuous residence
requirement

But continuous residence can only be counted for time that you spent as a permanent resident, so somebody who left for 6 months within their first year of GC cannot be credited with the full 364 days because it would cut back into their pre-GC period.

So are you saying that someone who left for 6 months after being a permanent resident for 2 years is then able to apply 4 years + 1 day after their return unless they are able to prove that they did not intend to break continuous residence during this time? My interpretation of the 4 year +1 day rule is that you only get credited the last 364 days of travel outside the country if that travel lasts more than 1 continuous year but less than 2 years. Hence, someone who took a 6 month trip outside the US would be eligible to apply 5 years after they received their GC. However, they must still prove that they did not intend to break continuous residence during that trip during the adjudication process.
On the other hand, someone you left the country for more than 1 continuous year, but returns within 2 years will be credited 364 days counted towards continuous residence.

 

[Bobsmyth]

The appendices to the Adjudicator's Handbook also includes a USCIS memo stating categorically that the 4yr+1day rule applies even with absences less than 1 yr.

I wouldn't refer to that as a "USCIS memo" since it wasn't sent out to the entire agency. I would call it a incorrect interpretation at best, and can see how an adjudicator would use it (albeit incorrectly) to interpret the law since that correspondence letter refers to

8 CFR 316.5(c) (1) (ii) which is specific to travel outside the US more than 1 year. Just because this letter is in the online (redacted public vesion) manual doesn't mean it is the in official policies and procedures that USCIS currently uses to adjudicate cases. Read the disclaimer on the first page of that manual before using it as a legal policy reference.
​

 

[Jackolantern]

However you want to slice it and dice it, you can't use the 4 year and 1 day rule to get citizenship before the 5-year mark (or 3-year mark for those married to a US citizen).

 

[Bobsmyth]

However you want to slice it and dice it, you can't use the 4 year and 1 day rule to get citizenship before the 5-year mark (or 3-year mark for those married to a US citizen).

Yes, obviously . But what I'm saying is that I don't think the rule is written to credit 364 days for travel between 6 and 12 months even if you were a resident more than 1 year.

 

[Jackolantern]

People who left the US very shortly after receiving the green and stayed away for several months may face a somewhat different issue; the IO may conclude that they did not begin to establish residence until after they returned from that long trip. In other words, it's not that they had continuous residence and broke it, it's that it didn't even start until the end of that long trip.

Somebody on this board reported getting a "continuation" whereby they were not outright denied, but told to come back for an interview several months later because the IO said the 5 years started from the end of that initial trip, not the date of GC approval.