Eligibility for Naturalization when out of USA for more than 1 year

A

avit

New Member
Due to some family reason I had to go to India before obtaing USC. But before going I at least got the chance to apply for Re-entry permit and went to india in 2006. Now I am back in USA again need some advise, guidance for getting USC. Here are the detail:

I got my PR - August, 2006.
Went to India - May 30, 2007 - Took REP for whole family,
Came back to USA - May 15, 2009.
I want to get USC for my Son who is 13 years old, for that I need to get the USC before I finally R2I.

Could you please help me in finding when can I apply for N-400 because I had the long absence.

I would greatly appreciate that.
 
avit said:
Due to some family reason I had to go to India before obtaing USC. But before going I at least got the chance to apply for Re-entry permit and went to india in 2006. Now I am back in USA again need some advise, guidance for getting USC. Here are the detail:

I got my PR - August, 2006.
Went to India - May 30, 2007 - Took REP for whole family,
Came back to USA - May 15, 2009.
I want to get USC for my Son who is 13 years old, for that I need to get the USC before I finally R2I.

Could you please help me in finding when can I apply for N-400 because I had the long absence.

I would greatly appreciate that.
Click to expand...

Under the provision cited below, you can apply 4 years and 1 day after you return to resume permanent residence from a trip of more than 1 year, assuming you did not have an N-470. That would approximately be on May 16, 2013.


8 C.F.R. 316.5

(1) Absence from the United States
...
(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 da te of the applicant's return to the United States to resume permanent residence.
 
avit said:
Due to some family reason I had to go to India before obtaing USC. But before going I at least got the chance to apply for Re-entry permit and went to india in 2006. Now I am back in USA again need some advise, guidance for getting USC. Here are the detail:

I got my PR - August, 2006.
Went to India - May 30, 2007 - Took REP for whole family,
Came back to USA - May 15, 2009.
I want to get USC for my Son who is 13 years old, for that I need to get the USC before I finally R2I.

Could you please help me in finding when can I apply for N-400 because I had the long absence.

I would greatly appreciate that.
Click to expand...

4 years and 1 day, after your entry after the trip exceeding 1 year. (you can not apply 90 days in advance of 4 year + 1 day). you have to be physically present for 30 months. and should maintain the continuous residence. 364 days of ur being abroad can be used towards meeting continuous residence.(4y+1d+364d =5 years).
 
Last edited by a moderator:
sunny808 said:
(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 da te of the applicant's return to the United States to resume permanent residence.[/I]
Click to expand...

I know the 4 year 1 day rule, but I am not clear about the borderline scenarios ... where I think this case fits.

The residency requirement is 5 years. In this case, the OP stayed in US for less than 1 year before he left for India. If we apply the 4 year rule, looks like the OP will get the benefit despite less than 5 years of residency. While CIS rules might be archaic, this does not sound intuitive.

Anyway, is this how it works?
 
sanjoseaug20 said:
I know the 4 year 1 day rule, but I am not clear about the borderline scenarios ... where I think this case fits.

The residency requirement is 5 years. In this case, the OP stayed in US for less than 1 year before he left for India. If we apply the 4 year rule, looks like the OP will get the benefit despite less than 5 years of residency. While CIS rules might be archaic, this does not sound intuitive.

Anyway, is this how it works?
Click to expand...

thats a question popping in my head too , all i know is unlike the n470, u dont have to be physically present in america for year before applying for n400 (if you meet the criteria for being eligible for preserving residence for naturalization purpose, n470) i dont know if you should have residency of a year or ur gc issued a year or earlier. my case is kind of similar but i had my gc issued in 2003, had back to back trips first after 11 months, 2 months stay in america, secured a re- entry permit , returned to america in feb 2006. assuming that i qualify for the 4year +1 day rule, my naturalization is in process. the interview is yet to be sched though. so far so good.
 
Last edited by a moderator:
as far as i know from the research i've done

5 years continuous residency is mandatory (not considering married to USC). but if you have a gc issued , had secured a re- entry permit, had a trip of a year or more, you would be eligible for 4 years and 1 day as long as its atleast 5 years since ur GC is issued. In the sense, USCIS is not giving u a lowered span for eligibility instead its letting you use 364 days of your stay abroad towards meeting the 5 years continuous residency. they dont allow double dipping for 4 year + 1 day applicants, so you cant apply 90 days in advance.

please correct me if i am wrong
 
Sree, that sounds right and probably what is done in practice. Or they can apply 4 years plus 1 day instead of 90 days prior regardless of how long they've been a GC holder, but won't be able to take their oath until the 5th year anniversary.
 
exactly, my 5th year anniversary of gc was in 2008, just turned eligible for applying upon 4y+1d in FEB, all my sources told me that there is no head start of 90 days for these applicants, its literaly the 4 year and 1 day that u become eligible. risking the loss of 675 bucks, i decided to wait.


the example on the guide to naturalization should have been more clear and should have more than one example so people can relate their case to the example.
 
Last edited by a moderator:
sanjoseaug20 said:
I know the 4 year 1 day rule, but I am not clear about the borderline scenarios ... where I think this case fits.

The residency requirement is 5 years. In this case, the OP stayed in US for less than 1 year before he left for India. If we apply the 4 year rule, looks like the OP will get the benefit despite less than 5 years of residency. While CIS rules might be archaic, this does not sound intuitive.

Anyway, is this how it works?
Click to expand...
No, because your time outside the country (364 days) is credited towards continuous residency so that in fact when the OP does apply in 2013 he will have met 5 years of continuous residency as a LPR (4 years + 1 day +364days)=5 years of continuous residency.
 
sreeleshk said:
..u dont have to be physically present in america for year before applying for n470 (if you meet the criteria for being eligible for preserving residence for naturalization purpose, n470) .
Click to expand...
You do need to be continuously physcially present in the US for at least 1 year after obtaining GC before you can apply for N-470.
 
shreeThanks alot, Sunny808, sreeleshk, Sanjose.....!!!

I guess I do not have much option but to wait for 4 years. I am planning to complete 30 months continous residency and then go back to India and make trips to USA till I complete 4 years + 1 day. Hope this would work.
 
avit,
The 4 year + 1 day rule begins when you return to resume residence. If your trips are significantly lengthy enough to determine that you've broken continuous residency, the clock will reset each time you return so tread carefully.

/s
 
sunny808 said:
The 4 year + 1 day rule begins when you return to resume residence. If your trips are significantly lengthy enough to determine that you've broken continuous residency, the clock will reset each time you return so tread carefully.
Click to expand...

I agree. You might have a higher burden of proof because you took an RP, then come back for 30 months (just enough to meet residency) and then pattern of trips.
 
You must log in or register to reply here.
Top