For early filed N-400, 8 CFR incoherent on timing of the 3-month State or DO residence requirement

[Bearish1]

What does the following really say?

8 CFR 316.2 says:
"(a) ... an alien must establish that he or she:
...
(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence"

Although the CFRs are certainly written with extreme care (and that is often visible), this one clause seems very incoherent. Its purpose is to prescribe the exact time of the three month jurisdiction period. But then it uses the time of that period in defining that period. In other words, it is using the defined term within the definition of that term.

 

[Bearish1]

One also wonders..

In addition to that problem, one wonders what do the following exactly mean:

* "the required period of residence under Section 316(a)"

Technically 316(a) requires continuous residence starting 5 years (or 4.75 years) before the filing date up to the oath, including the 3 month period. So that cannot be what is meant here because that period (from filing minus 5 years to the oath) would include the 3 month jurisdiction period as a tautology.

So, is it referring to the period up to the first date the 3 residence requirements are satisfied (continuous residence, physical presence, and state or do residence)? Or up to the first date the bigger two (continuous residence and physical presence) are satisfied? I suspect it must be the last one, but difficult to tell for sure.

* "the three month period"

Is that the jurisdiction period's 3 months? Or the 3 months allowed for early filing? Presumably the former.

* "the applicant's actual place of residence"

At the time of filing? During the 3 months? At the time of the interview? Presumably the middle one. Or may be the last one.

But one wonders what are they ... exactly?

 

[Bearish1]

The Adjudicator Field Manual copies essentially the same language. Consequently, it is not very coherent either.

Which leads to the question, what do the interview officers do, how do they decide?

 

[Jackolantern]

It simply means that you must have 3 months of residence in the state or district when filing the N-400, except that if you are filing within the 90-day early window (i.e. prior to completing the 5 years or 3 years of continuous residence) you are allowed to complete those 3 months of state/district residence as of the interview date.

 

[Bearish1]

It simply means that ... if you are filing within the 90-day early window (i.e. prior to completing the 5 years or 3 years of continuous residence) you are allowed to complete those 3 months of state/district residence as of the interview date.

I am not certain if this is what that clause means. That clause would definitely mean this if we deleted the part "and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act." If lawmakers really wanted to mean what you suggest, they would not include that part of the sentence. I think.

 

[Jackolantern]

I am not certain if this is what that clause means. That clause would definitely mean this if we deleted the part "and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act." If lawmakers really wanted to mean what you suggest, they would not include that part of the sentence. I think.

What is your point? Are you in a position of becoming eligible to apply for citizenship at a time when you're moving to a new state? Or do you like to confuse yourself for fun?

 

[BigJoe5]

This issue highly frustrates those unworthy of naturalization in the first place.

The CFR and the statute upon which it is based were deliberately written back when travel and communication was much more difficult and consequently background checks were more difficult (beginning in the 1780s through the 1980s).

It has morphed into a mechanism to thwart the efforts of people who attempt to "fake it" and who really reside abroad impermissibly* while seeking naturalization for unethical, unpatriotic, or other ulterior motives.

* Not in accordance with a legal exception.

 

[Bearish1]

What is your point? Are you in a position of becoming eligible to apply for citizenship at a time when you're moving to a new state? Or do you like to confuse yourself for fun?

The former, because I might have to move. (Not for fun.)

 

[Bearish1]

BigJoe5's answer does not contain any useful information about the question posed

The CFR and the statute upon which it is based were deliberately written back when travel and communication was much more difficult and consequently background checks were more difficult (beginning in the 1780s through the 1980s).

It has morphed into a mechanism to thwart the efforts of people who attempt to "fake it" and who really reside abroad impermissibly* while seeking naturalization for unethical, unpatriotic, or other ulterior motives.

The supposed answer above gives no answer or any real information about the questions posed in this thread. It was posted probably just to have fun. Or perhaps it gives info (by a former IO?) how the IOs look for and find ways to "thwart the efforts" of deserving immigrants, based on presumptions that they must be trying to fool the system or something.

 

[BigJoe5]

The supposed answer above gives no answer or any real information about the questions posed in this thread. It was posted probably just to have fun. I'll write more when I have time.

You began a thread stating that the regulation was "incoherent". An explanation for the regulation is offered and again you fail to grasp the essence of a reply.

Please go see a lawyer and have these areas of obvious severe confusion explained to you at great length and at great expense as you are not well suited to make proper use of an informative immigration forum. I for one will never again bother attempting to answer one of your queries.

 

[Bearish1]

Let's stop the hate

You began a thread stating that the regulation was "incoherent". An explanation for the regulation is offered and again you fail to grasp the essence of a reply.

Please go see a lawyer and have these areas of obvious severe confusion explained to you at great length and at great expense as you are not well suited to make proper use of an informative immigration forum. I for one will never again bother attempting to answer one of your queries.

The offered explanation looked to me as if it was aiming at sarcasm rather than answering my question.

I am guessing the real reason you hate me is that in another thread I revealed your (and others’) error regarding how to count days, all the while the answer was buried in the AFM. And you are the experts and I am just a layman. I guess I would also hate it if I were you. (But I would not post unfair stuff like that.) But if that would make you feel better, NO ONE knew about it, including several lawyers I talked to, and none of them were lousy lawyers, and some of them are actually very very good.

Despite your unjustified hate for me, I recognize your contributions to this forum; I saw many posters expressing gratitude because you posted a lot of useful information. It’s unfortunate for me I will not be one of those who benefit from it. But that is that, and I would like to end negative posts and move on. I am not angry for your posts, although I should be. Maybe I am just getting old.

 

[Bobsmyth]

What does the following really say?

8 CFR 316.2 says:
"(a) ... an alien must establish that he or she:
...
(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence"

Although the CFRs are certainly written with extreme care (and that is often visible), this one clause seems very incoherent. Its purpose is to prescribe the exact time of the three month jurisdiction period. But then it uses the time of that period in defining that period. In other words, it is using the defined term within the definition of that term.

Compare the wording of the INA for clarification:

.. 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

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9822.html

 

[Bearish1]

My situation

It simply means that you must have 3 months of residence in the state or district when filing the N-400, except that if you are filing within the 90-day early window (i.e. prior to completing the 5 years or 3 years of continuous residence) you are allowed to complete those 3 months of state/district residence as of the interview date.

Jackolantern, thank you again for this explanation.

Are you in a position of becoming eligible to apply for citizenship at a time when you're moving to a new state?

Here is an example that pretty much is my situation.

Suppose an applicant lives (and has lived) in district A, and April 1 is the end of his 5-year period. This person is able to do an early filing on January 1.

But the applicant will move on February 1 (very firm date cannot be changed) to district B. Of course it is possible to apply on January 1 in District A, and transfer the case later to District B. But given the potential problems that may arise from transfering an application (debatable I realize but), suppose the applicant decides instead on the following:

Do not apply on Jan 1. Wait until Feb 1 and move to District B. Then apply there on Feb 1, two months before completing 5 years.

Now in this example, an interview on April 1 (the 5th aniversary) would be too early because he lived in the jurisdiction for only 2 months by April 1.

But what about an interview on (or after) May 1?

On May 1 the person would satisfy:

1. Yes, the application did an early filing (filed 2 months before the end of the 5-year period), so he can be expected to satisfy the two residence requirements not by the filing date but by the interview date

2. Yes, on the interview date he satisfies the 5-year residence requirement (by exceeding it by 1 month)

3. Yes, on the interview date he satisfies the 90-day jurisdiction period (just)

So, one could say “yes the person is satisfying the two residence requirements.”

However, the 90-day jurisdiction period above (the Feb 1-May 1 period) does not fall within the first 5-year period where the person satisfies the 5-year requirement for the first time. (Again the 5-year anniversary is April 1.)

So I am wondering if that wold be a violation of the condition “if the three month period falls within the required period of residence under 316(a) or 319(a)”? But since it is hard to decipher what it is saying, I am unable to tell for sure. But this must be what that condition means because if not, then what else could it possibly mean I don't know.

 

[nwctzn]

Play it safe. You waited five years and one or two extra months do not matter much. Apply three months after you move to your new district. It will save you a lot of headaches, money, and time.

 

[looklook199]

Jackolantern, thank you again for this explanation.



Here is an example that pretty much is my situation.

Suppose an applicant lives (and has lived) in district A, and April 1 is the end of his 5-year period. This person is able to do an early filing on January 1.

But the applicant will move on February 1 (very firm date cannot be changed) to district B. Of course it is possible to apply on January 1 in District A, and transfer the case later to District B. But given the potential problems that may arise from transfering an application (debatable I realize but), suppose the applicant decides instead on the following:

Do not apply on Jan 1. Wait until Feb 1 and move to District B. Then apply there on Feb 1, two months before completing 5 years.

Now in this example, an interview on April 1 (the 5th aniversary) would be too early because he lived in the jurisdiction for only 2 months by April 1.

But what about an interview on (or after) May 1?

On May 1 the person would satisfy:

1. Yes, the application did an early filing (filed 2 months before the end of the 5-year period), so he can be expected to satisfy the two residence requirements not by the filing date but by the interview date

2. Yes, on the interview date he satisfies the 5-year residence requirement (by exceeding it by 1 month)

3. Yes, on the interview date he satisfies the 90-day jurisdiction period (just)

So, one could say “yes the person is satisfying the two residence requirements.”

However, the 90-day jurisdiction period above (the Feb 1-May 1 period) does not fall within the first 5-year period where the person satisfies the 5-year requirement for the first time. (Again the 5-year anniversary is April 1.)

So I am wondering if that wold be a violation of the condition “if the three month period falls within the required period of residence under 316(a) or 319(a)”? But since it is hard to decipher what it is saying, I am unable to tell for sure. But this must be what that condition means because if not, then what else could it possibly mean I don't know.

my there,
my question is:
if I move from District A to District B for around 2 years already; however, as your example, filing date is January 1. What if I leave the country for a 2 months family visit from Sept 15-Nov 15. Could I still file on January 1?
My concern is:

1, I have lived in District B for 2 years, however, I was not in the USA from Sept - Nov. Does it break the 90 day jurisdiction?

Thank you all!

 

[nwctzn]

my there,
my question is:
if I move from District A to District B for around 2 years already; however, as your example, filing date is January 1. What if I leave the country for a 2 months family visit from Sept 15-Nov 15. Could I still file on January 1?
My concern is:

1, I have lived in District B for 2 years, however, I was not in the USA from Sept - Nov. Does it break the 90 day jurisdiction?

Thank you all!

You are fine. You just took a trip outside of the US; i.e., you did not relocate and you did not change your residence (and hence, you did not change your district). You can proceed with your application.

 

[ramjays2000]

For early filed N-400, 8 CFR incoherent on timing of the 3-month State or DO residence requirements

What does the following really say

U may apply N400 before 3 months;but if the interview takes place before the completion of 5years, they don't approve u on that day of interview but tell u that u will be intimated in due course.This is what had happened to me. I had my interview on Dec21 2011; The interview went off very well and the officer was extremely nice. Still he did not tick the column 'congratulations' I am completing my 5 year only on Jan 10 2012. So I am hopefully waiting for my approval and the date for naturalization ceremony; any comment on this?Thanks a lot



8 CFR 316.2 says:
"(a) ... an alien must establish that he or she:
...
(5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence"

Although the CFRs are certainly written with extreme care (and that is often visible), this one clause seems very incoherent. Its purpose is to prescribe the exact time of the three month jurisdiction period. But then it uses the time of that period in defining that period. In other words, it is using the defined term within the definition of that term.

nnnn

 

[ramjays2000]

: For early filed N-400, 8 CFR incoherent on timing of the 3-month State or DO residence requirement

You are fine. You just took a trip outside of the US; i.e., you did not relocate and you did not change your residence (and hence, you did not change your district). You can proceed with your application.

In my opinion, this may not be fine. It is clearly stated that any body filing N400 should have been staying in the state/ district for the last 3months before applying. In fact, the officer asked me during my interview recently on 21 dec2011 whether i have been away from San jose in the last 3 months. so in the present case, since he was away from USA during sep to nov, he will be eligible to file N400 in March only.If one goes through the Naturalization guidance book, it clearly states that people must live in USCIS district/State in which they r applying for at least 3 months before applying.

 

[nwctzn]

In my opinion, this may not be fine. It is clearly stated that any body filing N400 should have been staying in the state/ district for the last 3months before applying. In fact, the officer asked me during my interview recently on 21 dec2011 whether i have been away from San jose in the last 3 months. so in the present case, since he was away from USA during sep to nov, he will be eligible to file N400 in March only.If one goes through the Naturalization guidance book, it clearly states that people must live in USCIS district/State in which they r applying for at least 3 months before applying.

Your statement above is incorrect. The requirement is that you reside in the same district/state 90 days prior to application. The requirement is not that you have to be physically present all the time in the same district/state, otherwise, you could not even make short trips to different US states.

The reason why the officer asked you that question was to make sure that your N-400 application is up-to-date with all your travel information since you can travel internationally while your N-400 is pending. If you travel internationally while your N-400 is pending, you need to inform the interviewing officer so that your application can be updated accordingly.

So coming back to the question, taking a short trip to another US state or to another country does not break the rule. Taking a short trip (whether domestic or internationally) does not mean you give up your residence in your district/state; i.e., you are still being considered as living in the same district/state.