Do I have to meet the 5 years requirements one more time?

[gc66]

Hi friends:
To qualify for U.S. citizenship, an applicant must: have been a U.S. permanent resident for 5 years, of which 30 months physically stay in the U.S.

My question is, after I qualified for the above condition, If I dont apply for citizenship, and in the following years, i spend most of my times outside the States. Do i have to meet that condition once again for the 5 years immediate before the application, or i can use the first 5 years qualification to apply?

Thanks

 

[baikal3]

Hi friends:
To qualify for U.S. citizenship, an applicant must: have been a U.S. permanent resident for 5 years, of which 30 months physically stay in the U.S.

My question is, after I qualified for the above condition, If I dont apply for citizenship, and in the following years, i spend most of my times outside the States. Do i have to meet that condition once again for the 5 years immediate before the application, or i can use the first 5 years qualification to apply?

Thanks

You have to meet the continuous residency and the physical presence requirements for the 5 years immediately preceding an N-400 application.

 

[sanjoseaug20]

To qualify for U.S. citizenship, an applicant must: have been a U.S. permanent resident for 5 years, of which 30 months physically stay in the U.S.

My question is, after I qualified for the above condition, If I dont apply for citizenship, and in the following years, i spend most of my times outside the States. Do i have to meet that condition once again for the 5 years immediate before the application, or i can use the first 5 years qualification to apply?

No, you may not carry residency credits from years long past. The only advantage you may get is to file 4 years and 1 day after your last "long trip" instead of 90 days before 5 years - basically saving you 9 months.

 

[baikal3]

No, you may not carry residency credits from years long past. The only advantage you may get is to file 4 years and 1 day after your last "long trip" instead of 90 days before 5 years - basically saving you 9 months.

However, I think the 4 years + 1 day rule applies only if the "last long trip" was one year or longer in duration.

 

[gc66]

Thank you guys for quick answer.
So, my understand is:
If I take long trips ( 6 months or longer) which break the continuency, I need to restart the 5 years (with previous record, would need 4 year +1 day, of which, 30 months present in the States).
If i only take short trips, the 5 years requirements will be intact, but I still need to meet the 30 months (2.5years) physical present in the States immediate before the application.

 

[baikal3]

Thank you guys for quick answer.
So, my understand is:
If I take long trips ( 6 months or longer) which break the continuency, I need to restart the 5 years (with previous record, would need 4 year +1 day, of which, 30 months present in the States).
If i only take short trips, the 5 years requirements will be intact, but I still need to meet the 30 months (2.5years) physical present in the States immediate before the application.

Actually, it is more complicated than that. A foreign trip longer that 1 year (almost) always breaks continuous residency, except if you had an approved N-470 form before the trip. A trip between 6 and 12 months is presumed to break continuous residency; however this presumption can be overcome if you can prove to the IO that the trip was strictly temporary in nature and did not break continuous residency. E.g. if you kept your house and kept your U.S. job, but went abroad for family or medical or educational reasons or because your U.S. job required it, or something of the sort. In practice trying to prove this is something of a roulette and depends quite a bit on the luck with a particular IO.

Also, again, in my understanding, the 4 years + 1 day rule applies only if the last long trip was at least a year long. If you take a trip 11.5 month long, you'd have to wait 5 years minus 90 days before you apply.

 

[sanjoseaug20]

However, I think the 4 years + 1 day rule applies only if the "last long trip" was one year or longer in duration.

Yes, and that's why I left it as MAY because the OP did not provide full information and seemed to be talking of hypotheticals. [But looks like there is a new update now.]

 

[sanjoseaug20]

Also, again, in my understanding, the 4 years + 1 day rule applies only if the last long trip was at least a year long. If you take a trip 11.5 month long, you'd have to wait 5 years minus 90 days before you apply.

Not too sure about that. So if you filed N470 to preserve continuous residence, you meet the requirements for 4Y+1.
However, if you are able to convince the IO that the 11.5 months was "nothing big" - then that implies that you do not wait till 5Y-90D from "this" last trip, but can go back even further ... since this trip did not break continuous residence requirement.

 

[baikal3]

Not too sure about that. So if you filed N470 to preserve continuous residence, you meet the requirements for 4Y+1.
However, if you are able to convince the IO that the 11.5 months was "nothing big" - then that implies that you do not wait till 5Y-90D from "this" last trip, but can go back even further ... since this trip did not break continuous residence requirement.

If there was an N-470 approved in advance, then the trip (wither it is 11.5 months or 12.5 months long) would not break continuous residency and the 4Y+1 day rule would not be relevant anyway.

With a 11.5 months trip, yes, the applicant would still have a chance to try to convince the IO that the trip did not break continuous residency; but if such an attempt is not successful, the applicant would have to wait at least 5 years minus 90 days after the end of the 11.5 months trip before submitting an N-400.

 

[Mufuruki2]

Do you guys want to say that one who stays out for more than 12 months is punished more than one who stays out for 11.5 months. I doubt.

 

[sanjoseaug20]

Well, rules are rules, right? Sometimes they take the rules literally, sometimes they look at the spirit of the rules. So if you get interviewed by an IO who goes by the written book - yes there will be a difference between someone who spent 1Y-2D outside US, and someone who spent 1Y+2D outside. But life is never so simplistic and more and more IOs are looking into the spirit of what you are trying to do.

 

[Jackolantern]

Do you guys want to say that one who stays out for more than 12 months is punished more than one who stays out for 11.5 months. I doubt.

Yes and no.

First of all, the person who stayed out for 11.5 months has a chance to prove that those 11.5 months didn't break continuous residence. Whereas the person who stayed out for 12+ months automatically breaks continuous residence with no chance to prove otherwise, unless they have N-470 or military service.

Second, the person who was out for 12+ months and is using the 4y+1d rule can still be required to prove their residential ties during the last 364 days of that 12+ month trip. If they were able to provide enough evidence of residence to satisfy the IO for those last 364 days, that evidence might have been able to overcome the presumption of breaking residence if the trip was under a year.

 

[Bobsmyth]

Second, the person who was out for 12+ months and is using the 4y+1d rule can still be required to prove their residential ties during the last 364 days of that 12+ month trip.

Proof of residential ties for what purpose, naturalization or LPR status?
For naturalization , the continuous residency is automatically broken with trips greater than 12 months, so why would an applicant be required to prove residential ties for the last 364 of the trip if they were automatically broken during that trip?

For LPR purposes, without a reentry permit a trip over 12 months assumes LPR abandonment so an applicant using 4 years + 1 day rule would still have to prove residency ties for the entire trip more than 12 months , not just last 364 days of that trip.

 

[Jackolantern]

Proof of residential ties for what purpose, naturalization or LPR status?
For naturalization , the continuous residency is automatically broken with trips greater than 12 months, so why would an applicant be required to prove residential ties for the last 364 of the trip if they were automatically broken during that trip?

I'm talking about naturalization. Look through the forum, you will see that people using the 4y+1d rule have been asked to prove residential ties for those 364 days.

Remember the idea behind the 4y+1d rule is that you are credited with 364 days of residence for the extended trip, so it makes sense that they would have to prove residential ties.

For LPR purposes, without a reentry permit a trip over 12 months assumes LPR abandonment so an applicant using 4 years + 1 day rule would still have to prove residency ties for the entire trip more than 12 months , not just last 364 days of that trip.

I'm talking about people who had a reentry permit for the 1+ year trip, and then some time later they apply for naturalization.

 

[warlord]

A big thing with this isn't breaking the continous residency, but risking abandoning the Pemenant Residency status while being away so much and possibly living and working outside the US...

 

[sotiredofwaiting]

What about the following? It would imply that the 4-year rule applies to shorter trips as well


Appendix 74-13 of adjudicator`s manual
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.

 

[baikal3]

What about the following? It would imply that the 4-year rule applies to shorter trips as well


Appendix 74-13 of adjudicator`s manual
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.

Yeah, I have seen this before, and IMHO this shows that the level of incompetence among INS workers was pretty high even among the supervisory personnel.

The language of 8 CFR 316.5(c) (1) (ii) is quite clear:
http://cfr.vlex.com/vid/316-5-residence-the-united-states-19608387

"(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."

The key phrase here is " An applicant described in this paragraph". The paragraph begins with "For period in excess of one (1) year." This makes it pretty clear, IMO, that the paragraph, and the 4years+1 days rule described in it apply only to absences of 1 year or more. I don't really see any wiggle room in the text for a different interpretation.

 

[sotiredofwaiting]

But they put this appendix in the adjudicator's manual for a reason.
I'm obviously not a lawyer, but don't the government agencies have the job of interpreting the statues? They figured that the situation of a person who came for one day during the one-year absence shouldn't be different from the situation of somebody who stayed the entire year abroad. I guess nobody bothered to challenge this interpretation in court.