Does my N-400 case have a shot?

J

jwalters

Registered Users (C)
Hello, My case is a bit complicated. Been a resident since the early 90’s.
5 years ago I took a trip over seas of 10 and a half months, with no re entry permit.
My trips are as follows:

06/19/2009 to 07/28/2009 38 days
12/24/2007 to 01/06/2008 13 d
02/13/2007 to 03/22/2007 35 d
06/06/2005 to 10/30/2005 146 d
07/25/2004 to 06/02/2005 310 d * five year period starts here.
05/11/2004 to 07/20/2004 68 d

Now that trip of 310 days interrupts my continuous status.
My application was filed on Aug. 3rd 2009, thanks to some bogus advice from a supposed professional., who proceeded to submit my application and not include the trip of 310 days on it. (I found out this information after the fact). I was skeptical but he assured me I was eligible.
I will be attending my interview on Nov. 10th and will be providing officer with all my trips.

My question is:
Since I broke my continuous resident status, and returned to US on 6/2/05 am I able to use the 4 plus 1 rule as of that date???

Or is it 4 years plus 1 day after 10-30-05 which is the date I “really” moved back to USA???

Or does the 4 + 1 rule not apply to me since I was never way for more than one year?

Remember my interview is on Nov. 10th.
Do I have a good case? Or a bad case???
Thanks
 
I would say go to the interview, correct the application with the trip you missed and see how it goes. It might be that you get lucky and they start counting from 6-2-05, but I'd guess they will put together those two long trips and make it look like one for purposes of breaking continuous residence, which might then bring the 10-30-05. Anyway, with the fast processing of cases you might only be looking at losing the money and a few months, but it seems you should be able to apply in a bit over a month from now.
 
What was the purpose of your long trip and did you keep US residency ties during that trip? The 10 month trip only presumes a break in continuous residency unless you can prove otherwise.
 
Thanks for replying. The purpose of my trip was I was going to school over seas. I didn't work while over there, but I didn't keep any ties to the US.
 
Since the trip falls within the 5 year statutory window you'll be expected to show US residency ties for the period in question. If you can't show US residency ties, you will be deemed have broken continuous residency and your application will be denied.
Was the school a US school or a foreign school?
 
It is a foreign school. Does the 4 + 1 apply to me??? or is that only if you are away more than a year???

Thanks
 
The question about the extent of applicability of the 4 years plus 1 day rule has not really been conclusively clarified here before.

The rule itself is detailed in 8 CFR 316.5(c) (1) (ii):

"(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with Sec. 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 Sec. 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 da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)"


To me the key phrase here is "an applicant described in this paragraph". This seems to mean that the rule only applies to the situations where the last absence that broke the continuous residency requirement lasted one year or longer.

If so, then, on the face of it, you do not qualify for the 4 years plus one day rule at all since both your absences (310 days and 146 days) were less than a year in duration. That would mean that you would only become eligible to file N-400 five years minus 90 days after the end of the last trip that broke your continuous residency requirement (which would appear to be that 146 days trip since during that trip you did not maintain close ties to the U.S.)
If the IO feels generous and decides to count the 310 and 146 days trips as a single absence (since you were only in the U.S. for 4 days in between them), then 4 years plus 1 day rule would apply and you would be eligible to apply 4 years plus 1 day after the end of the 146 days trip, that is on 10/31/2009. However, it appears that you filed N-400 too early for that.


I am also unclear about your statement that "My application was filed on Aug. 3rd 2009, thanks to some bogus advice from a supposed professional., who proceeded to submit my application and not include the trip of 310 days on it. (I found out this information after the fact)." Even if somebody else prepares an N-400 application for you, you are still required to sign the completed application (section 11 of N-400) before it is submitted. If you had done that, I don't see how you could not have known that the 310 day trip was not listed in the form when it was submitted. You may be in hot water at the interview regarding this point.
 
I just came apon this:

Continuous residence does not mean that an applicant cannot be absent from the United States. 8 C.F.R. § 316.5(c)(1)(i) states that an absence of more than six months and less than a year shall disrupt continuity of residence for purposes of naturalization, unless the applicant can establish that he/she did not terminate his or her employment in the US, the applicant’s immediate family remained in the US, the applicant retained full access to his or her US abode, or the applicant did not obtain employment while abroad.

Of these conditions the only that is true to me is that the applicant did not obtain employment while abroad.

How can I establish that?

thanks
 
jwalters said:
I just came apon this:

Continuous residence does not mean that an applicant cannot be absent from the United States. 8 C.F.R. § 316.5(c)(1)(i) states that an absence of more than six months and less than a year shall disrupt continuity of residence for purposes of naturalization, unless the applicant can establish that he/she did not terminate his or her employment in the US, the applicant’s immediate family remained in the US, the applicant retained full access to his or her US abode, or the applicant did not obtain employment while abroad.

Of these conditions the only that is true to me is that the applicant did not obtain employment while abroad.

How can I establish that?

thanks
Click to expand...
The IO will ask at you at the interview and you will have a chance to clarify that you didn't work while out of US.
Did you have any immediate family that remained inthe US while you were off studying ?
 
What happened was I went to the office where they help you prepare the Application. The gentleman there proceeded to have his secretary fill out the form with me, but we did not fill out the section about the trips. He had me sign the application. He told me that section would be filled out after they had a look at my passport. So they photocopied my passport and told me I could be on my way and everything was fine.

When I went back to the office, a week later, I was given a copy of my file with my application, to my surprise I saw that the long trip was not included. Which raised a red flag since we had discussed the trip and he had told me t was a non issue, since it was under a year. When I confronted him about it, he said his secretary made a mistake. Which I believe she didn't. I believe he purposely did not include that trip. After that we got into a huge argument when I told him this. He told me to not worry about it. He advised me to take the page of the application with the actual trips on it to the interview, but only present it to the officer if he were to ask me if there any mistake on my application. That's when I really knew this guy was shady.
 
No immediate family. I was living with my aunt and my sister before I left. Now I'm living with that same sister.

Both my parents live over seas.
 
jwalters said:
No immediate family. I was living with my aunt and my sister before I left. Now I'm living with that same sister.

Both my parents live over seas.
Click to expand...

You might want to have your sister write up an affidavit that you resided with her and continue to reside with her. Also, can you get anything from your foreign school stating that the studies were for a set period of time or lead to a degree with a set completion date?
 
- Ask him to attend the interview with you.

#1. Changing information at the time of interview in N-400 is not a problem, as long as the changes are minor. Major changes might send it for further review.

#2. Replacing sheets at the time of interview is also ok to save work for IO.

#3. Once you know about a problem, it is better to be truthful than not. As long as the difference is USD 675 and a few months delay (worst case), I do not see a reason why you should hide it. If it was a deportable offense, that would be different.
 
I'll bring the correct info to the interview.
I wont bring him along though. I doubt he'll come if I ask him.
I don't understand how some like this can work at an Immigrants & civil rights office. He not only works there, but he runs the place.
 
jwalters said:
I don't understand how some like this can work at an Immigrants & civil rights office. He not only works there, but he runs the place.
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Is he a licensed immigration lawyer? If he is, you might want to file a complaint with the state bar that he provided you with incorrect information.
 
If my case gets rejected I'll be asking him for my money back. He provides free service but if my case gets rejected it was his fault. He's the reason I applied sooner rather than later. I spoke with one his employees about this and he told me I can file a compliant with the mayor's office.

I read on another forum that you can request a continuation of your case... if you don't comply with the time requirements. Is this true???

thank you all
 
jwalters said:
I read on another forum that you can request a continuation of your case... if you don't comply with the time requirements. Is this true???
Click to expand...

Not really. You can request for an interview or oath to be rescheduled, but the fact will still remain that you are presumed to have broken continuous residence during statutory period.
 
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