Eligibility for Citizenship: Clarification on 90 days rule and 30 month stay

J

junkidentity

Registered Users (C)
Sorry to post this. I tried to search the forum but there are too many messages which could not answer my question.

Here is the question:

I got my GC (physical card) with valid from 09/15/2004. After going through the forum found that I can apply 3 months before the 5 years. I was out of the country for 6 trips totalling 237 days out of the country.

And I found I need to be present 30 months, the 30 month time is from the day of obtaining green card?

Am I eligible to apply citizenship now?

Thanks,
Junk Identity
Who lost identity :)
 
junkidentity said:
Sorry to post this. I tried to search the forum but there are too many messages which could not answer my question.

Here is the question:

I got my GC (physical card) with valid from 09/15/2004. After going through the forum found that I can apply 3 months before the 5 years. I was out of the country for 6 trips totalling 237 days out of the country.

And I found I need to be present 30 months, the 30 month time is from the day of obtaining green card?

Am I eligible to apply citizenship now?

Thanks,
Junk Identity
Who lost identity :)
Click to expand...

Yes you can apply 5 years minus 90 days from the date of you becoming a PR. 30 months of physical presence is a rolling time frame which you need to maintain all the way up to your interview and possibly oath ceremony. Yes this is calculated from the time you became a PR. This does not have to be continous but you should have accumulated 30 months during the 5 years.

As long as your trips were not more than 6 months and were not back to back you should be OK.
 
junkidentity said:
Sorry to post this. I tried to search the forum but there are too many messages which could not answer my question.

Here is the question:

I got my GC (physical card) with valid from 09/15/2004. After going through the forum found that I can apply 3 months before the 5 years. I was out of the country for 6 trips totalling 237 days out of the country.

And I found I need to be present 30 months, the 30 month time is from the day of obtaining green card?

Am I eligible to apply citizenship now?

Thanks,
Junk Identity
Who lost identity :)
Click to expand...

There are two issues: one is physical presences which requires 30 months
to be spent in USA. I think you clearly meet this criteria.

The other is continuous resident issue. This requires that your longest trip outside USAS not be too long. You have 6 trips totalling 237 days. If
breakdown is not like you have one 180-day trip and the rest 5 trips total
57 days, then I think you are aslo fine in this repect.

So you think you can apply. but don't use 3 month rule but
use 90 day rule and to be safe use 85 day rule to avoid miscalculation
)
 
Thank You

Thanks to both of you.

My longest trip was 110 days and the other trips are less than 30 days. I think to avoid any miscalculations I am gonna use 85 days as suggested. I really appreciate your response.

I thought 30 month presence was required from the date of green card.

THANK YOU.
 
But what's the deal with 3 months physical presence in the district that you will be applying from? Does this mean that you have to be in that particular district exactly three months before sending your N-400 application to the processing center? Or it means that you have to live in that district at least 3 months from the date you became PR? I am bit confused about the workding. On some publications it says "at least 3 months before applying" and on some it says "last 3 months before applying". Any thoughts/comments!!!!!
 
The law says:

Sec. 316. [8 U.S.C. 1427]
(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant,
(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months
Click to expand...

Because the word "and" (in and who resided within ...) the law is interpreted that you need to be in the district for 3 months immediately preceding the filing date.
 
eltoro said:
Because the word "and" (in and who resided within ...) the law is interpreted that you need to be in the district for 3 months immediately preceding the filing date.
Click to expand...
However, the requirement is to reside in the state/district for the 3 months, not to be physically present for the entire 3 months prior to applying.
 
Also look at 8 CFR 334.2(b): An application for naturalization may be filed up to 90 days prior to the completion of the required period of residence, which may include the three-month period of residence required to establish jurisdiction under Section 316(a) or 319(a) of the Act.
 
I am sure there are lot of members here who have filed immediately after coming from a long overseas strip. In our case we were in India for close to 6 months, came back and immediately filed our N-400. We didn't wait for 90 days and then file. This was not an issue during our process. We have lived in the same district where we have filed for many years before our trip.
 
vettipuls said:
We have lived in the same district where we have filed for many years before our trip.
Click to expand...
That is the key to it. If you lived in the state/district for a long time before traveling overseas, and then returned to live in the same place after traveling, you would have satisfied the 90-day state/district requirement. But if you returned to a different state/district, that's when you would have needed to wait 90 days.
 
Wording is bit confusing, to me “At least” mean any three months before filling and not 3 months counting backward the day I filed. Unfortunately, because of the nature of my job I cannot stay more than a month outside of my regions. I work for my US employer and he wanted me to stay in the Middle East for another 3 years. I own a home in US, paid taxed up to date, and have GA driving license. My plan is to fill all the paper work and give it to my friend, he will send it to my district office and I will then come for fingerprints, interview and oath. I will be using my overseas address as current but USA address for mailing on the form. Before moving to the Middle East, I was living in my district for about 10 years (4 years after becoming PR).

Please advise.
 
sargodhian said:
I work for my US employer and he wanted me to stay in the Middle East for another 3 years. I own a home in US, paid taxed up to date, and have GA driving license. My plan is to fill all the paper work and give it to my friend, he will send it to my district office and I will then come for fingerprints, interview and oath. I will be using my overseas address as current but USA address for mailing on the form. Before moving to the Middle East, I was living in my district for about 10 years (4 years after becoming PR).
Click to expand...
Then you'll be fine as long as you have maintained your home in the same district and have an approved N-470.
 
vettipuls said:
30 months of physical presence is a rolling time frame which you need to maintain all the way up to your interview and possibly oath ceremony.
Click to expand...

Physical presence requirement is up until the time you apply, whereas continuous residence is up until oath.
 
Hi,
To get more clarity on this physical presence and the 90 day rule, I have satisfied the 5yr continuous residence condition in Nov 2009. But because of my job, I travelled to different foreing countries on various projects. I had filed N-470 in 2006 that got denied twice and I have not heard back since the last time I appealed in 2008. However, I have never stayed away from the US for > 6 months on any of my trips. So, my continuous residence is preserved. I am back in the US now and looks like I will be here for another 8 months or so on this project. I will pass the 913 days physical presence test on Aug 20. My question is, is it safe to apply N-400 on the 20th July 2010 or should I wait until 20th Aug. This way, I am not applying 85/90 days before but can get the benefit of applying early. I really want rush thro' the process before I get sent out again on another project.

Regards
 
You are cutting it too close if you are counting days until 913 days. Even if you never spent more than 6 months outside US, it is the overall travel pattern which matters, not one individual trip. Do not assume your continuous residence is preserved.

I know a lot of people do it, and lot of people talk about the economy, but you need to make a call where you either prioritize projects or immigration, otherwise it all depends on your luck.

To answer your question, you must meet the physical presence test (913 days in last 5 years ... not since you got GC) before you file. There is no question of filing when you have not met the numbers.
 
touchngo said:
My question is, is it safe to apply N-400 on the 20th July 2010 or should I wait until 20th Aug.
Click to expand...

Are you referring to 2010 or 2011 ?
Physical presence must be met the time of filing application. There is no 90 day grace period for physical presence.

Was your N-470 denied twice? If so, on what grounds?

Finally, what residency ties in the US have you held while traveling outside for work?
 
Pattern of travel? for 30 months' presence test

Even if you never spent more than 6 months outside US, it is the overall travel pattern which matters, not one individual trip. Do not assume your continuous residence is preserved.

"it is the overall travel pattern which matters"

I have been out of the country a lot during 2009 and 2010 due to work - so that I am below the 30 month rolling 60 months' test.

Unfortunately, these years are the most recent so will not "roll off" anytime soon. If I start now to spend a substantial amount of time in the US, my average can get back up to 30 months in about 2-3 years.

1. Can I reasonably apply as soon as I hit the 30 month mark? What documentation do I need to show, if any, other than a calendar or list of some sort? Is this something that is scrutinized heavily on application or in an interview?

2. What "pattern of travel" is harmful? One in which one has spent a lot of time in recent years outside the country?

3. If one is never outside the US for more than a few months at a time, yet is out of the country 75% of the year (but maintains a business and all assets in the US, bank accounts, etc.) is one at risk of losing one's green card?

thx
 
immi2586 said:
1. Can I reasonably apply as soon as I hit the 30 month mark? What documentation do I need to show, if any, other than a calendar or list of some sort? Is this something that is scrutinized heavily on application or in an interview?

2. What "pattern of travel" is harmful? One in which one has spent a lot of time in recent years outside the country?

3. If one is never outside the US for more than a few months at a time, yet is out of the country 75% of the year (but maintains a business and all assets in the US, bank accounts, etc.) is one at risk of losing one's green card?
Click to expand...

1. Applying as soon as you have the 30 months is inadvisable; borderline situations put you at risk of denial due to inconsistencies or inaccuracies of USCIS's date counting. For example, see http://forums.immigration.com/showthread.php?323814

When you apply, wait until you have enough extra days beyond 30 months, that you would still be OK even if USCIS miscounted every single trip by a day or two.

2. No simple and single answer. List your trips and we might have be able to give you an idea.

3. Low risk of losing the green card if that travel pattern is only for one year. Near-zero risk if one held a reentry permit during that time.

But for naturalization the criteria is more strict than for maintaining the green card. The risk of naturalization denial for traveling like that would be somewhat higher.
 
2. I have been a LPR for 20 years. During the past 4 years I have had to travel extensively for work for my own US-based company. In 2007 and 2008 I was in the US over 50% of the time. In 2009 I was out of the country about 9 mos. In 2010 out of the country about 10 mos. So far in 2011, about 5 months, but no further travel intention for the rest of the year. No intention to give up residency and substantial ties here, including owning a business here.

3. Can I get a re-entry permit granted if I am away for less than 6 months each trip? CAn one be granted out of the country? I am due to return to the US shortly.
 
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