Eligibility for citizenship

[kdatyeva]

Hi everyone,
Here is the question, can someone apply for citizenship having often absences from US (more than 6 months but less than a year) from May 2000 till July 2004? Then since July 2004 the person has been living in the US permanently (it's been almost 4 years). He has never been denied entry to the US, filed tax returns ever since he bacame a permanent resident. Does the 4 year + 1 day rule applies here? He has never abandoned his residence though. When do you think will be the best time for this person to file? Potential drawbacks? Worst case scenario?
Thanks!!!

 

[Bobsmyth]

What was the purpose of his numerous 6 month + absences? Were these absences back to back? Did he file N-470? Without more specifics it's difficult to say when he should apply.

 

[boatbod]

Since your >6mth absence occurred within the 5yr residency period, you will have to rebut the presumption that you broken residence during the trip. That means you need proof of continued close ties to the US (family remained behind, you kept up with a mortgage or lease, other financial commitments etc). Also, you need to have files taxes as a resident, even while you were away.

 

[Jackolantern]

If those multiple trips until 2004 are deemed to have broken continuous residence, the 4 year + 1 day rule would apply, making him eligible to apply in July 2008. If not deemed to have broken residence (because he had an N470 or was working overseas for the US government or military), he would already be eligible. If unsure, just wait until July.

 

[kdatyeva]

Thank you for your reply. I think it would be the best for a friend of mine to wait till July. Will there be any potential problems with those old absences between May 2000 and July 2004?

 

[kdatyeva]

Since your >6mth absence occurred within the 5yr residency period, you will have to rebut the presumption that you broken residence during the trip. That means you need proof of continued close ties to the US (family remained behind, you kept up with a mortgage or lease, other financial commitments etc). Also, you need to have files taxes as a resident, even while you were away.

Yes, he bought a house in 2008 and his child was born in the US in 2007.

 

[kdatyeva]

What was the purpose of his numerous 6 month + absences? Were these absences back to back? Did he file N-470? Without more specifics it's difficult to say when he should apply.

Yes, they were back to back and he didn't file N-470. He worked overseas and took care of his elderly parents. Yes, he filed taxes in 2000-2004 taking the foreign income tax exemption, but he came back in July 2004, bought a house here and his wife just had another child in the US. Will that be considered as a proof of his intents to live in the US even though he was absent a lot in the beginning?
Thanks!

 

[tabaliya]

If those multiple trips until 2004 are deemed to have broken continuous residence, the 4 year + 1 day rule would apply, making him eligible to apply in July 2008. If not deemed to have broken residence (because he had an N470 or was working overseas for the US government or military), he would already be eligible. If unsure, just wait until July.

Please clarify something: are we talking about one or more absences each lasting more than six months in duration or the sum total of ALL absences combined together lasting more than six months?

Does it become a problem in the latter case? I think not. Only in the former case do you need to worry about continuous residency requirement.

someone please clarify this.

 

[Bobsmyth]

Please clarify something: are we talking about one or more absences each lasting more than six months in duration or the sum total of ALL absences combined together lasting more than six months?

Does it become a problem in the latter case? I think not. Only in the former case do you need to worry about continuous residency requirement.

someone please clarify this.

Actually it does become a problem because they look at your overall intent. Simply returning every few months to beat the 6 month cut off won't preclude you from demonstrating intent for continuous residency requirement.

 

[Bobsmyth]

Yes, they were back to back and he didn't file N-470. He worked overseas and took care of his elderly parents. Yes, he filed taxes in 2000-2004 taking the foreign income tax exemption, but he came back in July 2004, bought a house here and his wife just had another child in the US. Will that be considered as a proof of his intents to live in the US even though he was absent a lot in the beginning?
Thanks!

The purchase of a house and the birth of his child on US soil after his return does not count towards proving intend in the period of his absences. Considering that the trips were back to back and no N-470 was filed, I would say it would be best to wait 4 years + 1 day after his return in July 2004.

Jackolantern previously posted specific information on this :

http://boards.immigrationportal.com/showthread.php?p=1759394#post1759394

 

[tabaliya]

Actually it does become a problem because they look at your overall intent. Simply returning every few months to beat the 6 month cut off won't preclude you from demonstrating intent for continuous residency requirement.

Oh no - I was referring to the situation where you may have 8-10 trips (for business, visit back to your country of origin, tourism etc.) each of about 2-3 weeks tops. The total number of days spent outside the US (sum total of ALL trips ever taken in the statutory period) may be > 6 months (say 200 days but less than 1 year) but this is over a period of five years and entails short duration trips of no more than 3-4 weeks at a time. Still a problem? If a problem this would preclude almost any business traveler or serious traveling enthusiast.

AP

 

[Bobsmyth]

Oh no - I was referring to the situation where you may have 8-10 trips (for business, visit back to your country of origin, tourism etc.) each of about 2-3 weeks tops. The total number of days spent outside the US (sum total of ALL trips ever taken in the statutory period) may be > 6 months (say 200 days but less than 1 year) but this is over a period of five years and entails short duration trips of no more than 3-4 weeks at a time. Still a problem? If a problem this would preclude almost any business traveler or serious traveling enthusiast.

AP

I don't think several short business trips of 2-3 weeks that all add up to more than 6 months in a given year would go against you unless that was your pattern in the previous 5 years before your application since you would then fail the physical residency requirement test. I'm referring to back to back trips of 3-5 months that clearly show a pattern of intent to break continuous residency.

 

[Jackolantern]

Please clarify something: are we talking about one or more absences each lasting more than six months in duration or the sum total of ALL absences combined together lasting more than six months?

I'm talking about multiple absences very close together, each under six months but totaling (much) more than six months. Like 4 or 5 trips of 3 months each, with 1-2 weeks in between trips.

 

[kdatyeva]

The purchase of a house and the birth of his child on US soil after his return does not count towards proving intend in the period of his absences. Considering that the trips were back to back and no N-470 was filed, I would say it would be best to wait 4 years + 1 day after his return in July 2004.

Jackolantern previously posted specific information on this :

http://boards.immigrationportal.com/showthread.php?p=1759394#post1759394

Thank you Bobsmyth.
Can they still say something about those previous years or the 4 years+1 day rule automatically "restores" the continuos residence? Can they, retroactively, decide that the person abandoned his residence in 2004 and therefore, is subject to deportation in 2008? I guess, the question is what the worst case scenario may be? Thanks!

 

[Jackolantern]

Can they, retroactively, decide that the person abandoned his residence in 2004 and therefore, is subject to deportation in 2008?

Probably not, unless it was really egregious (e.g. four years absence, and snuck back into the US or lied at the POE). Residence criteria for naturalization are more strict than for the green card, so it is possible to fail the criteria for naturalization but still be OK for maintaining the green card.