Does the 4 year 1 day rule apply to me?

[davefromoz]

Hello,

I travelled to the US on March 28, 2009 to activate my Green Card but left the US one week later with no ties to the US. I returned to the US on January 24, 2010 and have resided here ever since (with only a three week vacation in Australia earlier this year).

Do you think I would qualify for the 4 Year 1 Day rule? If so, I assume that I could apply for Citizenship on January 25, 2014?

If the rule doesn't apply to me, do you know when I would be eligible to apply considering I have resided continuously in the US since January 24, 2010?

Thank you for your help,

Dave.

 

[Jackolantern]

As of January 2014 you still wouldn't have completed 5 years as a permanent resident. They don't allow you to combine the 4 years and 1 day rule with the 90-day early filing rule, so you should wait until you have the full 5 years as an LPR, i.e. March 28, 2014.

 

[Tazmania]

Thought 4 year and 1 day rule only applies where the absence was over one year. I would say he can file 90-days before January 24, 2015

 

[Jackolantern]

They issued an interpretation to clarify that the 4 year + 1 day rule applies for absences of over 6 months but less than a year.

 

[Tazmania]

I only know about this:

8 CFR 316.5©(1):
"© Disruption of continuity of residence
(1) Absence from the United States .
(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service."
...
"(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."

 

[davefromoz]

They issued an interpretation to clarify that the 4 year + 1 day rule applies for absences of over 6 months but less than a year.

Hi Jackolantern,

Thanks for your replies.

I have not heard of this interpretation. It would be great if that's the case but I'm a little hesitant to file early in case it is rejected.

Do you know somewhere that I can confirm the new interpretation (or it is officially documented)?

Thanks again!

Dave.

 

[Jackolantern]

Hi Jackolantern,

Thanks for your replies.

I have not heard of this interpretation. It would be great if that's the case but I'm a little hesitant to file early in case it is rejected.

Do you know somewhere that I can confirm the new interpretation (or it is officially documented)?

It is officially documented, but I can't find it right now. The closest I am to finding it is the thread linked below which quotes it and refers to a page at uscis.gov which presumably had the text of the interpretation, but the page referenced therein is a broken link.

http://forums.immigration.com/showt...hs-but-less-than-a-year&p=2258508#post2258508

 

[Hannah7]

It is officially documented, but I can't find it right now. The closest I am to finding it is the thread linked below which quotes it and refers to a page at uscis.gov which presumably had the text of the interpretation, but the page referenced therein is a broken link.

http://forums.immigration.com/showt...hs-but-less-than-a-year&p=2258508#post2258508

So that means that if I have broken continuous residence by an absence longer than 1 year (with reentry permit) I can no longer use 4 years and 1 day rule? So I have to wait another full 5 years after the long absence?

 

[Jackolantern]

So that means that if I have broken continuous residence by an absence longer than 1 year (with reentry permit) I can no longer use 4 years and 1 day rule? So I have to wait another full 5 years after the long absence?

No. Using the 4y+1d rule after an absence of over a year is clear and settled. The disputed part is whether you can use it after an absence of over 6 months but less than a year. The text as quoted from that thread says Yes, but the original source of that text at uscis.gov can no longer be found.

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).