My n400 application get denied due "physical presence and continuous residence requirements"

M

mhd3000

New Member
Hi,
I got my green card in Sep-2014 (through my wife) I wasn't ready to move permanently to the US, I kept to visit two weeks every 6 months(except the last trip was 8 months ) until Nov-6 2016 I moved permanently and never left the country until now.
I filled my N-400 in Feb-6-2018 (period Nov-6 2016 to Feb-6-2018 is a year and three months ) I knew its early but I thought I can apply earlier 32 months and waiting time until interview and oath would be considered, seems I was wrong.

The interview was Sep-18-2018, my application denied Oct-13-2018.
My question do I have chances to appeal the denial by filling N-336 ? or just I have to re-apply again and how long I have to wait until I can re-apply?

Thanks
 
You need to have had met the requirements as at the time you filed, which you clearly didn’t. I’d suggest you carefully read the requirements again to determine when you can apply again.there is an eligibility worksheet on the uscis site. But basically, you need to have been in the US 18 months before applying if using the 3-year rule (spouse), and your 3-year count for continuous residence starts from November 2016 because you broke continuous residence by being out for 8 months before that. https://www.uscis.gov/us-citizenshi...physical-presence-requirements-naturalization
 
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Thanks for the reply
In denial notice, I needed 46 days more to be eligible, which I have now, how long I have to wait to re-apply again?
 
mhd3000 said:
Thanks for the reply
In denial notice, I needed 46 days more to be eligible, which I have now, how long I have to wait to re-apply again?
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Well that doesn’t make sense to me by itself because you broke continuous residence by being absent longer than 6 months. The way I would see it is that you can’t apply till Nov 2019. Did they say anything about that?
 
Last time I have been out of the country was Nov-6 2016 which is almost 2 years now.
Not mentioned in the notice when I have to apply again.
 
And they won’t tell you when to apply again because they can’t see the future and what you might do in the interim. They might say in 2 months,but if you move to a different city you can’t because you have to have resided somewhere 3 months before applying there. Or they might say a year, but if you leave the US for more than 6 months then you can’t. Etc. that’s why they give the information,so you can work out when you need to apply.
 
Sorry I didn't see your update.
I'm still confusing, as I understood If I break my continuous residence(have a trip more that one year) I have to wait 2 years and one day after last trip before I can apply again.
 
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mhd3000 said:
Sorry I didn't see your update.
I'm still confusing, as I understood If I break my continuous residence(have a trip more that one year) I have to wait 2 years and one day after last trip before I can apply again.
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But you didn’t have a trip more than one year. You had 8 months according to what you said? It takes 6 months to be presumed to break continuous residence. Did you read the link?
 
From the link I quoted, I have copied and pasted and deleted the stuff that is not relevant to you so hopefully you can see now exactly what the requirements are. If this isn’t clear enough, then I’m sorry you need to find someone else to ask, I don’t see how else I can clarify what is already very clear wording by uscis.

Continuous Residence

Applicants are required to show that they have:
Resided continuously in the U.S. for three years in the case of qualified spouses of U.S. citizens, (see legal basis)
“Continuous residence” means that the applicant has maintained residence within the United States for the required period of time shown above.
Extended absences outside of the U.S. may disrupt an applicant’s continuous residence.
Absences of more than six months but less than one year may disrupt an applicant’s continuous residence unless the applicant can prove otherwise, (see legal basis, see policy manual)

Physical Presence

Applicants are required to show that they were:
Physically present in the U.S. for eighteen months within the three year period before applying in the case of qualified spouses of U.S. citizens (see legal basis)
In addition, applicants are required to show they have resided for at least three months immediately preceding the filing of Form N-400 in the USCIS district or state where the applicant claims to have residency.
 
It's somewhat unclear whether people who broke continuous residence by being outside the US between 6 months and 1 year can use the 4 year + 1 day rule / 2 year + 1 day rule or not. On one hand the text of the regulation seems to say it is only for people who were absent for more than 1 year, but it doesn't seem to make sense that someone who was out for more than 1 year has a more advantageous application timeline compared to someone who was out for less than 1 year. There is also an old letter from INS in Appendix 74-13 of an old version of the Adjudicator's Field Manual (which has since been removed because that chapter has been superseded by a chapter in the USCIS Policy Manual, which does not contain the letter or similar content), which seems to say that someone who was absent between 6 months and 1 year can use the 4 year + 1 day rule. I don't know if it this interpretation is still accepted.
 
mhd3000 said:
That's exactly my concern, am I eligible for this rule or not.
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Well, do you have $725 spare to gamble and find out?

I have seen a post on another forum where someone out for less than a year was denied trying this, as newaccts said it doesn’t seem fair, I can’t remember when I saw it though.
 
SusieQQQ said:
Well, do you have $725 spare to gamble and find out?

I have seen a post on another forum where someone out for less than a year was denied trying this, as newaccts said it doesn’t seem fair, I can’t remember when I saw it though.
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If I want to gamble I would not do any research, asking and even write in this post.
 
If you do decide to apply please let us know. I actually have a vested interest, my husband had an absence of >6 months > 1 year and we are waiting for 5 years since his return to apply, based on our understanding of the rule, I’d love to hear confirmation from someone who successfully applied the rule for a less than one year absence as it will mean he can apply much sooner. But there’s no great urgency, and there are much better things I can think to waste $725 on than an ineligible application!
 
To the OP - just wait your 3 full years till you apply! Basically for you Nov 2019. They are really into continous residence. Even if you have done the 2 weeks every 6 months game. I found out the hard way - had to withdraw my first application because of an RFE on continuous residence. After that - patiently waited my 5-year mark. Good luck
 
i though 2 years + 1 day apply to anyone who had just returned to the USA and stayed there (not breaking continuous residency). So it only matters that you have had the GC for 3 years by then and still married to the same USC spouse.
 
abumiqdad said:
i though 2 years + 1 day apply to anyone who had just returned to the USA and stayed there (not breaking continuous residency). So it only matters that you have had the GC for 3 years by then and still married to the same USC spouse.
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The rules clearly state it applies after a break in residence.

3. Eligibility after Break in Residence
An applicant who is required to establish continuous residence for at least 5 years [15] and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement [16] may apply two years and one day after returning to the United States to resume permanent residence.[17]
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

There’s a lawyer on avvo who actually explains this well I think - he says (in response to someone who was out for 10 months) “The 4 year and 1 day rule is not any sort of "benefit". On the contrary. It's a restriction, which forces one having remained abroad for a year or more to wait for at least 4 years and 1 day before being eligible to apply for citizenship. In your particular situation, having remained abroad for just 10 months does not make this restrictive rule applicable to you. You will be able to apply for citizenship if you meet, in aggregate (total) at least half of the statutory residency period applicable to you, i.e. either 3 or 5 years.”
 
so out for 10 months is not considered as a break in residence? in that person's case (the lawyer in Avvo), the period before the absence of 10 months can be counted in the 5 years/3 years to Naturalization?

i thought below 6months is considered okay but more than that (even less than 1 year) would already considered as break in residency - and has to start the clock again.
 
Sorry to revive this old thread, but for future reference, USCIS updated its policy manual (here) which clarifies that someone who was absent between 6 months and 1 year and who was unable to overcome the presumption of interruption of continuous residence, has to wait 4 years and 6 months (or 2 year and 6 months if applying under the 3-year rule) after they return.

Interestingly, it also says that for someone who broke continuous residence by an absence of more than 1 year, in order for them to apply under the 4-year-and-1-day rule (or 2-year-and-1-day rule), they must present the evidence to overcome the presumption of interruption of continuous residence (like for absences of between 6 months and 1 year); if they are unable to do that, they must also wait until 4 years and 6 months (or 2 years and 6 months).
 
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