How soon can I apply for US citizenship ?

H

heatgun

Registered Users (C)
hi all,
I have the green card for 7.5 years (dv lottery) and I established my residence from Feb 2008 to now without leaving the U.S.
I have few long-trips in 2005-2006 and 2007 and I exceed 6 months more than three times in past 7.5 years and never applied for ReEntry permit.
Please check my trips below and give me an advise.

Date I left the U.S..............Date I returned to the U.S..........Total Days Out Of U.S.
05/22/2007...................................02/10/2008................................264
06/05/2006...................................05/03/2007................................332
06/16/2005...................................05/26/2006................................344
First time Travel to United States (DV1 Immigrant Visa) 04 / 15 / 2005

how many total days did you spend outside of the united states during the past five years? 209 (as of 7/16/2012)

when do u guys think that I can apple for the citizenship?
 
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heatgun said:
hi all,
I have the green card for 7.5 years (dv lottery) and I established my residence from Feb 2008 to now without leaving the U.S.
I have few long-trips in 2005-2006 and 2007 and I exceed 6 months more than three times in past 7.5 years and never applied for ReEntry permit.
Please check my trips below and give me an advise.

Date I left the U.S..............Date I returned to the U.S..........Total Days Out Of U.S.
05/22/2007...................................02/10/2008................................264
05/06/2006...................................05/03/2007................................332
06/16/2005...................................05/26/2006................................344


how many total days did you spend outside of the united states during the past five years? 209 (as of 7/16/2012)

when do u guys think that I can apple for the citizenship?
Click to expand...

You became eligible to file on Feb. 12, 2012.
 
No, the 4 year 1 day rule applies when, after establishing permanent residence, you break your continuous residency. Once you return from the last trip that broke continuous residency, you can apply 4 years and 1 day later.
 
could you please provide a link or a document where I can read about this? somehow I remember that 4+1 rule applies for someone who is out of country over 1 year with reentry permit.
 
Page 22: http://www.uscis.gov/files/article/M-476.pdf

I forgot to include that you must have broken your continuous residency by staying out for more than 1 year. Correct me if I'm wrong, BigJoe5. So, I don't think you're eligible for the 4 year 1 day rule unless your trips are considered to be 1 long trip, in which case your GC could also be in jeopardy.
 
cafeconleche said:
Page 22: http://www.uscis.gov/files/article/M-476.pdf

I forgot to include that you must have broken your continuous residency by staying out for more than 1 year. Correct me if I'm wrong, BigJoe5. So, I don't think you're eligible for the 4 year 1 day rule unless your trips are considered to be 1 long trip, in which case your GC could also be in jeopardy.
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A trip that is over 6 months but less than one year is presumed to break continuity of residence unless you can prove otherwise. IF you are not able to overcome the presumption of that break, you may then utilize the same remedy of waiting 4 yrs and 1 day after the break as long as "otherwise eligible" for naturalization.

NOTE: Spouses of USC may qualify at 2 years and 1 day.
 
I never obtained continuous residence before Feb 2008, how could I break continuous residence that I had never obtained?
Still confusing..
 
heatgun said:
Date I left the U.S..............Date I returned to the U.S..........Total Days Out Of U.S.
05/22/2007...................................02/10/2008................................264
05/06/2006...................................05/03/2007................................332
06/16/2005...................................05/26/2006................................344
Click to expand...

Something is wrong with your dates.
 
Jackolantern said:
Something is wrong with your dates.
Click to expand...

You're right, sorry

Date I left the U.S..............Date I returned to the U.S..........Total Days Out Of U.S.
05/22/2007...................................02/10/2008................................264
06/05/2006................................05/03/2007.............................332
06/16/2005...................................05/26/2006................................344

First time Travel to United States (DV1 Immigrant Visa) 04 / 15 / 2005
 
Your last long trip ended on Feb 10, 2008. So you can either use the 4 years and 1 day rule and apply now based on becoming eligible to apply on Feb 11, 2012, or use the usual 5 years minus 90 days rule and apply on or after November 12, 2012.

If you choose the 4 year + 1 day rule, it puts you at risk of USCIS reinterpretations and misinterpretations surrounding when you established residence, like what has happened to some others on this forum who left the US to take long trips soon after green card approval. So it would be safer to apply on or after November 12 with the 5 year minus 90 days rule, and November 12 is less than 4 months from now. But on the other hand, if you're prepared for the risk of some hassles and delays, you can go ahead with the 4y+1d rule and apply now and see what happens.
 
Jackolantern said:
Your last long trip ended on Feb 10, 2008. So you can either use the 4 years and 1 day rule and apply now based on becoming eligible to apply on Feb 11, 2012, or use the usual 5 years minus 90 days rule and apply on or after November 12, 2012.

If you choose the 4 year + 1 day rule, it puts you at risk of USCIS reinterpretations and misinterpretations surrounding when you established residence, like what has happened to some others on this forum who left the US to take long trips soon after green card approval. So it would be safer to apply on or after November 12 with the 5 year minus 90 days rule, and November 12 is less than 4 months from now. But on the other hand, if you're prepared for the risk of some hassles and delays, you can go ahead with the 4y+1d rule and apply now and see what happens.
Click to expand...

Sorry to tell you but the above is 100% wrong.

INA 334(a) allows for filing 3 months (90 days) early when filing directly under INA 316(a) or 319(a) ONLY. That is calculated from the LPR date (in this guy's case that was in 2005). The early filing option no longer exists for this person.

The 4 year and 1 day rule of 8 CFR 316.5(c)(1)(ii) derives from INA 316(b) which modifies INA 316(a) and 319(a) and therefore is a separate issue and a separate basis for naturalization.

The two provisions are mutually exclusive and can never be applied together.

"Continuity of residence" is a separate issue from "time as an LPR" and also from "physical presence". These similar issues are easy to confuse and conflate. USCIS adjudicators conflate issues also, but this one has been fought out and clarified.

SEE: http://www.slideshare.net/BigJoe5/understanding-n400-early-filing
 
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BigJoe5 said:
The 4 year and 1 day rule of 8 CFR 316.5(c)(1)(ii) derives from INA 316(b) which modifies INA 316(a) and 319(a) and therefore is a separate issue and a separate basis for naturalization.
Click to expand...


So long story short, when can I apply for naturalization in my case?
 
BigJoe5 said:
Sorry to tell you but the above is 100% wrong.

INA 334(a) allows for filing 3 months (90 days) early when filing directly under INA 316(a) or 319(a) ONLY. That is calculated from the LPR date (in this guy's case that was in 2005). The early filing option no longer exists for this person.
Click to expand...

The 90 day early filing still is available because the statute below allows filing 3 months before the continuous residence requirement is satisfied. The 5 years is not specifically tied to the GC anniversary, it actually counts backwards from the application date, and passing the GC anniversary doesn't wipe out eligibility for the 90-day headstart (if such a headstart may be useful due to long trips). Note that I am not combining the 90 days with 4 years, the 90 days is to be subtracted from five years after the last long trip.

INA 316 said:
(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...

INA 334 said:
In the case of an applicant subject to a requirement of continuous residence under section 316(a) or 319(a) , the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement.
Click to expand...

Let's ignore the 4 year + 1 day rule for now, and suppose the OP applies on December 10, 2012. Is there 5 years of continuous residence at that time? No -- 5 years would be completed Feb 2013. But is there 5 years minus 90 days of continuous residence? YES! There are 4 years and 10 months, which is 2 months before the 5 years of continuous residence requirement would be completed, and the statute allows filing up to 3 months before.

So even if the IO is ignorant of the 4 year + 1 day rule or thinks it doesn't apply for whatever nutty reason, November 12 this year still makes the OP eligible under the usual 5 years minus 90 days rule, and therefore will NOT have to wait 5 full years after the end of that last long trip if the 4y+1d rule is not respected or properly understood by the IO.

The two provisions are mutually exclusive and can never be applied together.
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I never said it could be combined. It's either 4 years + 1 day, or 5 years minus 90 days. Nowhere did I suggest 4 years + 1 day minus 90 days.
 
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heatgun said:
So long story short, when can I apply for naturalization in my case?
Click to expand...

You can apply right now based on eligibility since Feb 2012, with the caveat that you might have some problems with IOs who misinterpret the 4year+1day rule. Or November 12 this year, which makes you eligible under the regular 5 year minus 90 day rule, enabling you avoid relying on the sometimes-misinterpreted 4y+1d rule.
 
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INA 101 Definitions

(a) As used in this Act-

(20) The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. [This refers to the "resident since" date on the greencard.]

(33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. [This has relevance to "continuous residence".]

**************

INA 316(a) refers most critically to "time as an LPR" and that part stays the same at 5 years. Once the 5 year anniversary has been reached it becomes a moot point as to "early filing".

INA 316(b)modifies 316(a) as it refers to the amount of "continuous residence" after a break in the continuity of that residence which is required before filing for naturalization.

(b) Absence from the United States of more than six months but less than one year during the period for which continuous residence is required for admission to citizenship, immediately preceding the date of filing the application for naturalization, or during the period between the date of filing the application and the date of any hearing under section 336(a) , shall break the continuity of such residence, unless the applicant shall establish to the satisfaction of the Attorney General that he did not in fact abandon his residence in the United States during such period. ............. [This is the statutory basis for 8 CFR 316.5(c)]

The remainder of this paragraph is what is used to justify the form N-470 and 8 CFR 316.5(d) which has nothing to do with OP.
 
heatgun said:
could you please provide a link or a document where I can read about this? somehow I remember that 4+1 rule applies for someone who is out of country over 1 year with reentry permit.
Click to expand...

Here is a link to one of the appendices of the USCIS Adjudicator's Field Manual that addresses applicability of the 4 years plus one day rule for absences between 6 months and a year that break continuous residency:
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-40527.html

It is a letter from 1993 by an INS official in response to an inquiry by an immigration lawyer. Since the letter is still linked as an appendix of the USCIS Adjudicator's Field Manual, presumably this means that USCIS still considers the interpretation of 8 CFR 316.5(c) (1) (ii) given in that letter to be valid.

If you do decide to submit an N-400 application now, on the basis of the 4 years plus 1 day rule, I suggest that in part 2 of N-400 (basis of eligibility), you don't check box "A" but rather check box "D" (Other) and write something like "8 CFR 316.5(c) (1) (ii), 4 years plus one day rule" in the explanation field.
Otherwise, if you check box "A" (applying on the basis of having been an LPR for 5 years), there is a good chance that the IO will press you to death for evidence that your 05/22/2007-02/10/2008 trip did not break continuous residency.

Also, if you do apply now, please post your experience here, from start to finish of the N-400 process.
 
BigJoe5 said:
INA 101 Definitions

(a) As used in this Act-

(20) The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. [This refers to the "resident since" date on the greencard.]

(33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. [This has relevance to "continuous residence".]

**************

INA 316(a) refers most critically to "time as an LPR" and that part stays the same at 5 years. Once the 5 year anniversary has been reached it becomes a moot point as to "early filing".
Click to expand...

We'll have to agree to disagree on these interpretations.

But in any case, I think we are both in agreement that applying on November 12, 2012 is not too early.
 
Jackolantern said:
We'll have to agree to disagree on these interpretations.

But in any case, I think we are both in agreement that applying on November 12, 2012 is not too early.
Click to expand...

I think we both already stated that the OP could have filed as of Feb 2012. That said, waiting is always an option for any of various reasons. There is no foreseeable harm in waiting but it is not required.
 
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