Is it ok to have just slightly fewer than 912 days outside the US when applying for N400 to pass the physical presence test in the U.S.?

n400fun

New Member
I have a green card since fall 2017. I plan to apply next year for Naturalization, since in my case I to wait 4 years and 9 months after getting the green card before I can apply for Naturalization. I'll submit the N-400 Application for Naturalization Form.

My question pertains to the requirement of the physical presence in the U.S. I read that one must be be physically in the U.S. for at least one half of the 5 years, which amounts to at least 5*365/2=913 days in the US. (which means at most 912 outside the US).

Is it ok to have just slightly fewer than 912 days outside the US when applying for N400? (i.e., 800 or 900 days spent outside the US)

I don't know whether having 911 outside the US or any number of days fewer than that automatically satisfies the physical presence in the U.S. or whether the USCIS has some subjectivity here (the same way has subjectivity for the continuous residence requirement test).

Assume that I satisfy the continuous residence requirement: I didn't make any trip longer than 179 days, only two of my trips were longer than 100 days, I made sure to have at least 1 month between each trip, and I'm going to different countries (almost never to my hometown, and 1 year and 6 months is the cumulative time I spent in the country I mostly frequently flew to).
 
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RetroPoint

New Member
I think you should ask several immigration lawyers (there are sites where they answer questions online) and hear what they say, and that would give you the general picture of what you can expect. No lawyer knows for sure what you could expect.

You don't know and nobody exactly knows how they calculate the "half of the 5 years". To some extent it's because they don't like people who get close to that threshold too much.

From what I read, you don't want to be below what might be considered as the 50% threshold by any method of calculation, not even one day below it. That would give them an excuse to eventually reject your application, and you might find out about it after a lot of money and time you spent on the application process. Especially if you are from a third world country (read: non-white, non-Christian), which they have a secret unofficial but well-documented policy to reject. On the other hand, if you are from a white European country such as Iceland, then your chances not to be rejected due to small technicalities are higher.

You actually want to be well above the threshold. I would say try to spend the next 6 or 12 months without traveling, and only then apply.

Mathematically, what you have done could have made them revoke your green card, since in every 365 day interval, you are supposed to be outside of the US no more than 180 days. So if you follow this rule, you cannot have the problem you were asking about.

However if you every year constantly get close to the 180 day outside of the US threshold, even if you don't exceed the 180 day threshold, you have a good chance that at the airport the customs officer would refuse to admit you, because it seems like your center of life is not in the US. Then you would have to see an immigration judge that may revoke your green card.

Also, pay attention that even after you submitted the application for citizenship, you still want to spend within the US most of your time. Yes, technically you can be outside up to 180 days every year. But in reality, they don't like to see this happening.
The processing time may be long, even very long (again, depending on your country of origin and ethnicity/religion) — as you can see in many other threads in this forum. During that time, they keep watching you. They may eventually reject your application because you were too much abroad (even if it's allowed by the green card conditions), and you could fight it legally, but why looking for a problem?
 
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n400fun

New Member
Thanks for your feedback!

> Mathematically, what you have done could have made them revoke your green card, since in every 365 day interval, you are supposed to be outside of the US no more than 180 days

Where does this rule come from? I.e., where did you read this USCIS rule is it?

> You don't know and nobody exactly knows how they calculate the "half of the 5 years

The USCIS website says 913 days in the US.
 

RetroPoint

New Member
You are welcome.

You are right about the 913 days, I just looked it up on the USCIS site. Honestly, I've never checked the exact number, because I already knew that the process is more than just making sure that all the "official" requirements are met. So I advise you not just not to be under this number, but to be well above this number. As for why? Why not to be below it — I already explained: they can use it as an excuse for denial, and you may find it out only after years of waiting. Why not just slightly above it? Because you will have an interview, and in the interview you may have to convince the officer that your center of life is in the US, although you seem to be abroad quite a lot. And as I said, they keep watching you, and can question you about how much you were traveling AFTER you submitted the forms, although it's not in the official "requirements". Of course, the officer who interviews you may also be just nice and never bother you. Nobody knows. If you are from a "problematic" country/ethnicity/religion your chances to be bothered, questioned and delayed are higher.
What you should know is that many officers don't know the exact rules. And even if they know, if you give them a bad feeling, they can decide that your application should be denied.
You can appeal and fight it legally, but do you want to try to minimize your risk?

You will always find people here who will tell you that they did all the "mistakes", and still got their citizenship application approved within less than 3 months, with zero legal fights. If you think you have a good chance to be one of them, then just follow the formal laws.

The rule you asked about is because there is a question "what is a year?" in the rule that says that a green card holder should not be more than 180 days outside of the US every year.
Is "a year" counted from January 1st to January 1st? I was not able to find a definitive answer.
I just know that at the airport, a customs officer can decide that as a green card holder you are traveling too much, even if in the last 365 days you were outside of the US only 179 days. You don't know what the mood of the random officer you will see is going to be that day, or what his political/racial views are. Surely if you traveled abroad 179 days, came back to the US for one day, and then traveled abroad another 179 days, and then came back again to the US, ALL WITHIN ONE CALENDAR YEAR, then when you are back the customs officer would most probably be upset at you. Then at the airport you would have to stand before an immigration judge and convince him that you are still tied to the US.
 
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RetroPoint

New Member
The example I gave you earlier needs a correction. It should be:

"Surely if you traveled abroad 179 days, came back to the US for one day which is December 31st, and then on January 1st you left again and traveled abroad another 179 days, and then came back again to the US, then when you are back the customs officer would most probably be upset at you."
Although in each calendar year you were abroad less than 180 days.
Actually even if in your second trip you just stayed abroad for a month (preceded by 5 months of staying in the US), there is still a chance for troubles at the airport when you come back, since within a 365 day period, you were outside of the US for more than 180 days (although in 2 different calendar years).

The general rule is that you don't want to push your luck. With a specific customs officer, a specific immigration judge, and specific something they find out about your history of traveling, the countries in which you traveled and how you can explain your visits there, you may end up with having your green card being revoked. Even after you already filed the citizenship application.
 

n400fun

New Member
> The rule you asked about is because there is a question "what is a year?" in the rule that says that a green card holder should not be more than 180 days outside of the US every year.

Thanks, the rule is a green card holder should not take a trip of more than 180 days outside of the US every year. If they take 2 trips of 100 days each with a decently long stay (e.g., 1 month) in the US between the 2 trips, no problem.

(trips of more than 180 days are possible but it'll get questioned by immigration agents and this causes is a presumption of break of the continuous residence requirement in the N400)
 
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