Interview experience today

P

PR81502

Registered Users (C)
Well, I had my interview today it went okay except the lady IO wants more documents of proof of residence. Decision can't be made right now.

I sent bills, IRS transcipts 2003 to 2008, payment stubs and bills for 2005 to 2008 with my N-400. She gave me a list of things to mail within 30 days.

1. Utility bills
2. Lease/rental agreement or proof of mortgage
3. Medical records
4. Marriage certificate
5. Vehicle registration for all vehicles owned
6. DMV print out
7. Vehicle insurance
8. List of addresses where you have resided since 2003. Please indicate how long you have resided at each address and with whom you lived.
9. Bank statements
10. Social security statements
11. Any other proof of residence.

I gave her #4 and an affidavit of residence from my dad when I lived with him(2002-2005). For 2003 and 2004 she wants bank statements which the bank can't provide since they purged that out already from their system. I gave her letter from bank indicating when account was opened in 2003.

I am sending her copy of DL, W-2s for 2005-2008, # 10, bank transactions I have for 2003 and 2005. If the bank has to provide me with 2004 transactions it will cost $30.00/hour to retrieve from storage and that will take a few months. They can not give an estimated total cost to retrieve 2004 transactions from storage. So the only proof of residence for 2003-2004 I have is the information from bank account(no bills).

I guess to really comes down to the IO to decide if I showed enough proof of residence.
 
PR81502 said:
No, I have been back 4 years and 6 months since 11/2004. I applied after 4 years and 1 day. I have not taken a trip since then.
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When using the 4 years and 1 day rule, they can still require you to show proof of residence during the long trip, going back into the trip for whatever it takes to make 5 years (in your case Nov. 2003).
 
PR81502 said:
No, I have been back 4 years and 6 months since 11/2004. I applied after 4 years and 1 day. I have not taken a trip since then.
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Did you provide IO cover letter or tell IO indicating you were filing under 4 year +1 day rule eventhough none of your absences before 11/04 were for more than 1 year?

Also, you previously mentioned you left to work overseas just over 45 days after obtaining your GC. Was this for a non-US company and was your spouse still in the foreign country at the time?
 
Bobsmyth said:
Did you provide IO cover letter or tell IO indicating you were filing under 4 year +1 day rule eventhough none of your absences before 11/04 were for more than 1 year?

Yes, I gave it to her.

Also, you previously mentioned you left to work overseas just over 45 days after obtaining your GC. Was this for a non-US company and was your spouse still in the foreign country at the time?
Yes a non-US company. I returned soon after my temporary assignment was up in 11/2004. Only got married in 2004 and yes she was still in the foreign country.
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PR81502 said:
Yes, I gave it to her.
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Did she mention anything about it since the rule implies it can only be used for absences of more than 1 year (nevermind about a 1993 correspondence letter in adjudicators manual that incorrectly interprets rule to suggest it can be used for absences >6 months < 12 months)

PR81502 said:
Yes a non-US company. I returned soon after my temporary assignment was up in 11/2004. Only got married in 2004 and yes she was still in the foreign country.
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Needless to say, both are big indicators of presumption of break in continuous residency than are very difficult to overcome.
 
Bobsmyth said:
Did she mention anything about it since the rule implies it can only be used for absences of more than 1 year (nevermind about a 1993 correspondence letter in adjudicators manual that incorrectly interprets rule to suggest it can be used for absences >6 months < 12 months)



Needless to say, both are big indicators of presumption of break in continuous residency than are very difficult to overcome.
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I told her the lawyer I consulted said I could apply after 4 years and 1 day. She looked at the cover letter and said I need need you to show proof of residence. I told her I have a bank account balance letter with my address on it. I told her all bills were in my dad's name since I lived with him then gave her the affidavit from him. She then asked for transactions. I had the passbook with me but it is updated up to Nov 2003. I did not get monthly or quarterly statement since I have to manually take passbook in to update it. And all my ATM transactions for that period I discarded years ago. The bank can get me the records but they have to dig it up at $30.00/hr.

I understand the break in CR but their own memo says you can apply after 4 years and 1 day. May be someone needs to write their senators and congress men to change the law so LPRs who has break in CR can apply for citizenship after 4 years and 1 day once you have been an LPR for 5 years. So everyone will benefit from the 364 days.

I will just send her the transactions I have and explain no statements are provide for passbook savings accounts.

Thanks again
 
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PR81502 said:
I understand the break in CR but their own memo says you can apply after 4 years and 1 day.
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It's not a policy memo but a INS correspondence letter dated from 1993. I doubt it holds much weight as the wording of 8 CFR 316.5(c)(1)(ii) makes it clear the rule is specifically for continuous absences of more than 1 year.

If the law was really also meant for absences of less than 12 months it wouldn't make sense why they would request for you to prove continuous residence for the period you are seeking to be credited for.
 
Bobsmyth said:
It's not a policy memo but a INS correspondence letter dated from 1993. I doubt it holds much weight as the wording of 8 CFR 316.5(c)(1)(ii) makes it clear the rule is specifically for continuous absences of more than 1 year.
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It's an intrepretive letter and it has some precedent value because 8 CFR 316.5(c) isn't clear. (When the underlying statute isn't clear or isn't detailed enough, it's totally within the implementing body's right to interpret and for others to rely on the interpretation.)

It's absolutely the case that 4 year + 1 day rule applies to absences over 1 year. However, for absences between 6 months and 1 year it is SILENT. (Goes on about how you can contest the deemed break, but says nothing about what happens if your evidence isn't accepted.) Assuming in any case that the applicant has had the GC for over 5 years in total (i.e., isn't doing an end run around the general 5 year rule), it makes no sense for folks who've been out of the country for 1 year to be better off than folks who've been out for less. Hence someone made the inquiry and the INS responded. (I agree though that the wording of the letter leaves much to be desired.)
 
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sh1996 said:
It's an intrepretive letter and it has some precedent value because 8 CFR 316.5(c) isn't clear.
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What specifically in 8 CFR 316.5(c)(1)(ii) isn't clear??


(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 date of the applicant's return to the United States to resume permanent residence.


The INS correspondence letter makes reference to 316.5(c)(1)(ii), eventhough the case was for an absence less than 12 months.
 
Bobsmyth said:
What specifically in 8 CFR 316.5(c)(1)(ii) isn't clear??


(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 date of the applicant's return to the United States to resume permanent residence.


The INS correspondence letter makes reference to 316.5(c)(1)(ii), eventhough the case was for an absence less than 12 months.
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As I already noted, it is clear if your absence was over 1 year (i.e., the provision you quote). It is not clear if your absence was between 6 months and 1 year (i.e., you can't point me to a provision that says 4 year + 1 day will not apply or that 5 year - 90 days will apply in such a situation).

Regardless of how you personally feel about statutory intrepretation, other folks obviously feel this is not settled law, hence the inquiry that led to the INS letter response letter. Also your interpretation leads to the a$$ backwards result that if you're going to break continous residency, you should really break it by staying out for 1 year plus. If you stay out for less, you will have to wait longer to re-establish residency?!?

I agree that the INS letter is poorly worded in that it refers to the nonresponsive 316.5(c)(1)(ii), which is for absences over a year, when the inquiry was clearly about someone who was absent for less. However, the ultimate answer for that applicant was 4 year + 1 day rule okay. Again leading to the conclusion that at the very least, the statute is not clear/is silent on absences under 1 year situation.
 
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sh1996 said:
It is not clear if your absence was between 6 months and 1 year (i.e., you can't point me to a provision that says 4 year + 1 day will not apply or that 5 year - 90 days will apply in such a situation).
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Isn't it a fair assumption it doesn't apply to absences under 12 months but more than 6 months since there is no mention of 4 years + 1 day in 8 CFR 316.5(c)(1)(i)? The 4 years + 1day wording is only in 8 CFR 316.5(c)(1)(ii) paragraph that pertains to continuous absences of more than 12 months.
sh1996 said:
Regardless of how you personally feel about statutory intrepretation, other folks obviously feel this is not settled law, hence the inquiry that led to the INS letter response letter. Also your interpretation leads to the a$$ backwards result that if you're going to break continuous residency, you should really break it be staying out for 1 year plus. If you stay out for less, you will have to wait longer to re-establish residency?!?
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The major difference is that if your trip is less than 12 months you are given the chance to prove you didn't break continuous residency, whereas with a trip over 12 months you are only credited the last 364 days of that trip towards continuous residence. Also, page 22 of the guide only mentions the 4 year + 1 day rule for absences over 1 year.

http://www.uscis.gov/files/article/M-476.pdf

sh1996 said:
I agree that the INS letter is poorly worded in that it refers to the nonresponsive 316.5(c)(1)(ii), which is for absences over a year, when the inquiry was clearly about someone who was absent for less. However, the ultimate answer for that applicant was 4 year + 1 day rule okay. Again leading to the conclusion that at the very least, the statute is not clear/is silent on absences under 1 year situation.
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The 1993 letter is an "advisory opinion". Besides linking the 4 year + 1 day rule to an absence of more than 6 months but less than 1 year, it makes no mention that such a absence can overcome any presumption of a break in continuous residency by providing acceptable proof as defined in 8 CFR 316.5(c)(1)(i). Both of these factors can lead one to conclude that the interpretation from INS was incorrect.

http://forums.immigration.com/showthread.php?t=238302
 
Bobsmyth said:
Isn't it a fair assumption it doesn't apply to absences under 12 months but more than 6 months since there is no mention of 4 years + 1 day in 8 CFR 316.5(c)(1)(i)?
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Precisely, it's only an "assumption" and therefore not black letter law or unambiguous.

Bobsmyth said:
The major difference is that if your trip is less than 12 months you are given the chance to prove you didn't break continuous residency, whereas with a trip over 12 months you are only credited the last 364 days of that trip towards continuous residence. Also, page 22 of the guide only mentions the 4 year + 1 day rule for absences over 1 year.

http://www.uscis.gov/files/article/M-476.pdf
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The a$$ backwardness (i.e., it's better for you to be out longer) still exists if you can't prove (to USCIS' satisfaction) that you didn't break continous residency.

The guide (a summary for the masses) has even less precedent value than the field manual/INS letter when you're relying on an omission to support an opinion....

Bobsmyth said:
Both of these factors can lead one to conclude that the interpretation from INS was incorrect.
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USCIS is the implementing agency...it's their job to interpret the statute. I'm not sure what you mean by they were "incorrect". That's neither here nor there to us as applicants. Who's going to sue USCIS and say they shouldn't have applied the rule? (If Congress thinks the interpretation is incorrect, they can amend the statute to clarify and even then I think they'd be hard pressed to revoke anyone's citizenship after the fact.) Anyway, the only point is that I think there's a good case to be made that 4 year + 1 day should be applied to absences under 1 year (assuming applicant held GC for at least 5 years total). And a good enough case that if you get denied, it's worth appealing.
 
sh1996 said:
Precisely, it's only an "assumption" and therefore not black letter law or unambiguous.



The a$$ backwardness (i.e., it's better for you to be out longer) still exists if you can't prove (to USCIS' satisfaction) that you didn't break continous residency.

The guide (a summary for the masses) has even less precedent value than the field manual/INS letter when you're relying on an omission to support an opinion....



USCIS is the implementing agency...it's their job to interpret the statute. I'm not sure what you mean by they were "incorrect". That's neither here nor there to us as applicants. Who's going to sue USCIS and say they shouldn't have applied the rule? (If Congress thinks the interpretation is incorrect, they can amend the statute to clarify and even then I think they'd be hard pressed to revoke anyone's citizenship after the fact.) Anyway, the only point is that I think there's a good case to be made that 4 year + 1 day should be applied to absences under 1 year (assuming applicant held GC for at least 5 years total). And a good enough case that if you get denied, it's worth appealing.
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I completely agree with you. That's exactly what the attorney told me, I should sue if I am denied. I believe the interpretation maybe be written poorly but what the person who wrote it was trying to explain is exactly what you are saying and any right thinking person would conclude.

It's like if someone takes a RP for 2 years but circumstances changed and the person returned to US after 362 days, then files an N-400 4years + 1 day. He is subsequently denied because he broke CR, but his friend in the same situation returns 2 weeks later and is approved. Tell me in which court of law will USCIS be able to defend her position if the same or similar situation applies to both they broke CR?
 
sh1996 said:
Anyway, the only point is that I think there's a good case to be made that 4 year + 1 day should be applied to absences under 1 year (assuming applicant held GC for at least 5 years total). And a good enough case that if you get denied, it's worth appealing.
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Until someone successfully appeals a denial based on 4 years + 1 day rule for absences under 1 years but more than 6 months we'll never know how much weight the 1993 opinion letter has.

In the OP's case, the IO requested proof of residence for the period (2003) he is seeking credit for. Why ask for proof of residence if the 4 years + 1 day rule credits you for the time in question as it does when you automatically break continuous residency for absences of more than 1 year?
 
Bobsmyth said:
Until someone successfully appeals a denial based on 4 years + 1 day rule for absences under 1 years but more than 6 months we'll never know how much weight the 1993 opinion letter has.

In the OP's case, the IO requested proof of residence for the period (2003) he is seeking credit for. Why ask for proof of residence if the 4 years + 1 day rule credits you for the time in question as it does when you automatically break continuous residency for absences of more than 1 year?
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I also haven't heard of anyone applying under 4 year + 1 day rule for an absence under 1 year and getting denied...yet. It does seem like there's a few of us currently in that situation, so we'll hopefully see soon. (Hopefully the other folks will keep us updated.)

My lawyer told me that for the 4 year + 1 day rule, I should have evidence to prove the date when I came back and re-established residency (i.e., a lease in my case). Maybe that's what the IO wants from OP? Honestly, I don't think IO's are at all consistent and not aways competent. I wouldn't draw policy conclusions for USCIS as an organization from the actions of one IO.
 
sh1996 said:
I also haven't heard of anyone applying under 4 year + 1 day rule for an absence under 1 year and getting denied...yet. It does seem like there's a few of us currently in that situation, so we'll hopefully see soon. (Hopefully the other folks will keep us updated.)

My lawyer told me that for the 4 year + 1 day rule, I should have evidence to prove the date when I came back and re-established residency (i.e., a lease in my case). Maybe that's what the IO wants from OP? Honestly, I don't think IO's are at all consistent and not aways competent. I wouldn't draw policy conclusions for USCIS as an organization from the actions of one IO.
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1. Utility bills
2. Lease/rental agreement or proof of mortgage
3. Medical records
4. Marriage certificate
5. Vehicle registration for all vehicles owned
6. DMV print out
7. Vehicle insurance
8. List of addresses where you have resided since 2003. Please indicate how long you have resided at each address and with whom you lived.
9. Bank statements
10. Social security statements
11. Any other proof of residence.

I mailed the following documents today(5/28/09):

#2(from 2005).
#9(a letter from bank indicating no statements available for passbook savings accounts, a copy of transactions from passbook for 2003 and an online printout of savings account transactions for 2005: it would not allow me to print 2003/2004).
#10 for 2005-2007.
#11W-2(2005-2008) and copy of DL.

So the only year I had no info for was 2004.

It is all left up to the IO now. I am hoping I get my oath letter instead of denial letter in the next 2-4 weeks.
 
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