My year is out next week...pls help

M

mariainclt

Registered Users (C)
Hi,
Have read the thread and have a question...Have been GC holder since 2001. I have been out of the US for 11 months and would like to return next week to apply for citizenship before my year is out. Before I left I applied for an extension to my residency (which they granted for 2 years which is the max) in order to give birth to my son..I had a complicated pregnancy and needed to be cared for full time.

As I said I would like to return next week in order to apply for citizenship...is that going to be a problem? I mean, I have read u have to have been in the State for 3 months prior to applying..or did I misunderstand that. (Btw I have only lived in NC the whole time I have been in the US)

Thanks.
 
Being out of the country for 11 months without being working for a US company has probably broken your continuous residency.

the rule says : If you leave the United States for more than 6 months, but less than 1 year, you have broken or disrupted your continuous residence unless you can prove otherwise.

Did you keep your residence in the US during the 11 months ? Have you been filing and paying taxes ?

i don't see you being approved as you do not meet the continuous residency. I don't believe having complicated pregnancies will be accepted by the IO at interview.

Off course, if you live outside for more than 12 months out of the US, your Green Card can be revoked.

Here is a good source of information: http://www.uscis.gov/files/article/M-476.pdf
 
mariainclt said:
I have been out of the US for 11 months and would like to return next week to apply for citizenship before my year is out.
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Oops, guess you should have read USCIS's M-476 Guide to Naturalization before going away for that long.

Unless you have an approved N-470, or some other really good reason why you didn't break your continuous residence, you are unlikely to be approved for natz at this time. Investigate the 4yr+1day rule.
 
Your main concern right now should be about returning to the US very soon to avoid losing your green card.

Your naturalization case probably will be denied for breaking continuous residence, but if you spend at least 6-12 months in the US before applying, you can maybe convince them otherwise. But if you apply right away you'll almost surely be denied.
 
mariainclt said:
Hi,
Have read the thread and have a question...Have been GC holder since 2001. I have been out of the US for 11 months and would like to return next week to apply for citizenship before my year is out. Before I left I applied for an extension to my residency (which they granted for 2 years which is the max) in order to give birth to my son..I had a complicated pregnancy and needed to be cared for full time.

As I said I would like to return next week in order to apply for citizenship...is that going to be a problem? I mean, I have read u have to have been in the State for 3 months prior to applying..or did I misunderstand that. (Btw I have only lived in NC the whole time I have been in the US)

Thanks.
Click to expand...

You must have been a resident in the district you are applying (I'm guessing you're in Charlotte area) for at least 90 days before applying. Your 11 month trip assumes have broken your continuous requirement, unless you can demonstrate US residency ties during the time outside the US. There have been past cases of applicants who were approved under similar circumstances (outside US under 1 year , but more than 6 months) due to prolonged family illness so all may not be lost in your case. In your case, it comes down to the discretion of the interviewing IO to determine if you have proven sufficiently US resident ties during your extended stay outside the US.
 
Bobsmyth said:
The OP indicated she applied for a rentry permit before leaving, so losing LPR is not an issue as it's (permit) still valid.
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OK, but upon reading "an extension to my residency" the reentry permit didn't come to mind initially. Now upon rereading it and figuring in the "2 years max" I agree the OP meant Reentry Permit but worded it awkwardly.
 
But Jackolantern, you still have a point, she needs to come back as soon as possible in US and apply for citizenship. She should be ready to show that health issues have delayed her coming back in US.
 
boatbod said:
http://boards.immigration.com/showthread.php?t=254465&highlight=4yrs+1+day
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That 1993 memo refers to "an applicant who has been determined to have broken his/her continuity". That tells me the applicant couldn't prove US residential ties during the period in question.

The OP still has an opportunity to prove US residential ties for the absence of less than 1 year but more than 6 months. It's anyone's guess on how the IO will decide if her evidence is sufficient to prove them (ties).

Btw, I still think that memo is flawed as it's essentially saying that someone who obtained LPR, and immediately travels for 6 months can apply 4 years +1 day after their return. That would mean the person could end up applying 6 months earlier than allowed under the law..needless to say their appliction would be denied. Also, the memo refers to
8 CFR 316.5(c) (1) (ii) which states that travel must be over 1 year in order to be considered for 4 year + 1 day rule.
​
 
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Thanks so much for the replies...
Apologies if I didnt explain things properly regarding the "re-entry permit" I applied before I left the US and was granted a 2 year extension on my GC. They sent me like a little passport (I am aware it is not an actual passport, I am just saying what it looks like).
What I have decided to do is return to the US right away and apply. I dont feel I have broken residency since I contacted immigration before leaving and explained my reasons for leaving. What documents will I have to provide in order to show my residency was not broken?

I know, I know ..the plot thickens....but I had all my mail sent to a PO Box whilst I was away since it was easier for my friend to collect my mail. I didnt work whilst away so no tax return was filed. Other than that..my cell phone, credit cards etc...stayed the same.

I know mine is a rather unorthodox case but any light you can shed on this would really be appreciated.
Thanks!!
 
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mariainclt said:
Thanks so much for the replies...
Apologies if I didnt explain things properly regarding the "re-entry permit" I applied before I left the US and was granted a 2 year extension on my GC. They sent me like a little passport (I am aware it is not an actual passport, I am just saying what it looks like).
What I have decided to do is return to the US right away and apply. I dont feel I have broken residency since I contacted immigration before leaving and explained my reasons for leaving. What documents will I have to provide in order to show my residency was not broken?

I know, I know ..the plot thickens....but I had all my mail sent to a PO Box whilst I was away since it was easier for my friend to collect my mail. I didnt work whilst away so no tax return was filed. Other than that..my cell phone, credit cards etc...stayed the same.

I know mine is a rather unorthodox case but any light you can shed on this would really be appreciated.
Thanks!!
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Your 11 month travel outside presumes that you have broken continuous residence requirement unless you can prove otherwise by providing evidence as in examples in 8 C.F.R. 316.5(c)(1)(i) :

namely:

1. The applicant did not terminate his or her employment in the U.S.;

2. The applicant’s immediate family remained in the U.S.;

3. The applicant retained full access to his or her U.S. abode; or

4. The applicant did not obtain employment while abroad.
 
Thanks Bobsmyth for your prompt reply,
Regarding your list...I may be in trouble because:
1. I am self employed (realtor)
2. I have no immediate family in the US (which is why I left since I needed full time care)
3. I was staying with my friend prior to leaving (my room is still available at my friend´s but obviously I wasnt sending any money whilst away since I wasnt there, my friend does not rent to the general public, I was just staying there out of friendship and to help her look after her daughter since I had flexible schedule)
4. I have not worked whilst abroad.

About your list...did I need to comply with all 4 points or was it any of them?

Thanks.
 
mariainclt said:
About your list...did I need to comply with all 4 points or was it any of them?

Thanks.
Click to expand...

The list is only a guideline when trying to establish US residency ties during your time away. Ultimately, it's up to IO to decide whether you have provided enough evidence to establish US residency ties. Do you own your own realtor company in the US? Also have you filed taxes every year?
 
I do not own a company, I was a realtor working with a company as self employed (as 99% of realtors in NC) we had arranged for me to continue with them as soon as I came back but...always as self employed. In other words...I was self employed Sep 2006-Oct 2007 when I left.
I filed taxes every year except this last year since I have been overseas and have had no income.
 
Bobsmyth said:
Btw, I still think that memo is flawed as it's essentially saying that someone who obtained LPR, and immediately travels for 6 months can apply 4 years +1 day after their return. That would mean the person could end up applying 6 months earlier than allowed under the law..needless to say their appliction would be denied. Also, the memo refers to
8 CFR 316.5(c) (1) (ii) which states that travel must be over 1 year in order to be considered for 4 year + 1 day rule.
​
Click to expand...
No. Such a person who left the US to go on an extended trip right after obtaining the green card would be deemed to have begun continuous residence at the end of that trip, and would be subject to the 5 year rule (5 years since the end of the trip). It would not be a matter of breaking residence, it would be that the continuous residence was started late.

And even if they say it is not a matter of beginning residence late, we still have to refer to the base rule which is that 5 years is required but you can be credited with up to 364 days of residence during your absence. The 4 years + 1 day rule is just the mathematical result when you apply the 364 days to somebody who has been outside the US for a year or more, in order to get 5 years. If they have only been outside the US for 7 months, they can only get credited for 7 months, and thus would still be short of the required 5 years if they left the US less than 5 months after obtaining the green card.
 
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Jackolantern said:
No. Such a person who left the US to go on an extended trip right after obtaining the green card would be deemed to have begun continuous residence at the end of that trip, and would be subject to the 5 year rule (5 years since the end of the trip). It would not be a matter of breaking residence, it would be that the continuous residence was started late.

And even if they say it is not a matter of beginning residence late, we still have to refer to the base rule which is that 5 years is required but you can be credited with up to 364 days of residence during your absence. The 4 years + 1 day rule is just the mathematical result when you apply the 364 days to somebody who has been outside the US for a year or more, in order to get 5 years. If they have only been outside the US for 7 months, they can only get credited for 7 months, and thus would still be short of the required 5 years.
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Your explanation makes perfect sense but after reading that USCIS letter from 1993 several times it makes no mention of this (continuous residence is started late if trip >6 months and <12 months is taken in first year as LPR). One would only deduce this from the base requirement that 5 years of residence is required to begin with.
 
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