N-400 applicant, disrupting continuous residency?

[musashi]

Hi Everyone,

I filed my N-400 last January 12, 2009. I did apply because I thought I am very eligible after reading the guidelines to naturazalition about the 4 year + 1 day rule

After reading this forum thread, I felt so worried knowing that the 4year + 1 day rule will only apply to those who left the country with re entry permit.

I am a LPR since Feb 2000 but I just started staying in the US last June 2004.

Below are the dates that I am outside the US

October 3, 2003 - June 6, 2004 (8 months since I left the US, but 5 months if the counting will start on the day that I apply for the N-400
August 17 - September 8 ,2005 (21 days)
August 25 - September 16, 2006 (21 days)
August 30 - September 17, 2008 (17 days)

I'd my fingerprinting done, and just waiting for the interview now.
Please guys, help me what are the documents that I need to bring to my interview to prove that I did not disrupt my continuous residency.

I am living with my dad and step mom, since then.

My dad is the one paying our rent. (But he was not able to keep those receipts before)
If we will request for a certification from the owner of the house that we are renting his apartment since 2000, will it be enough?
I have an ITR for the year 2004 (but it only covers the month of August - December) since I just started working on that month.

October 2003 - June 2004 is my last semester in school (in Philippines), The reason why I left the US for that long.

please guys share your thoughts, opinions and experiences...

Is anyone here experienced the same case or almost similar to mine? got approve or deny?

Thank you so much guys!

 

[Bobsmyth]

Did you specify 4 years + 1 day rule on your application?

 

[musashi]

Did you specify 4 years + 1 day rule on your application?

Nope. Should I do that?

 

[Bobsmyth]

Well if you don't request the 4 year + 1 day rule, they will assume you are applying under the regular 5 year rule.
However, the 4 year + 1 day rule is written in such a way to suggest it only applies to continuous absences outside the US of more than 1 year. There is a 1993 USCIS letter that (imo incorrectly) interprets the rule to suggest it can be used for continuous absences less than 1 year.

Gather as much evidence of US residential ties as you can to show that you did not intend to break continuous residency.

Btw, another poster (andrea4prez) was recently denied for breaking continuous residency also while studying in Philippines.

 

[musashi]

Well if you don't request the 4 year + 1 day rule, they will assume you are applying under the regular 5 year rule.
However, the 4 year + 1 day rule is written in such a way to suggest it only applies to continuous absences outside the US of more than 1 year. There is a 1993 USCIS letter that (imo incorrectly) interprets the rule to suggest it can be used for continuous absences less than 1 year.

Gather as much evidence of US residential ties as you can to show that you did not intend to break continuous residency.

Btw, another poster (andrea4prez) was recently denied for breaking continuous residency also while studying in Philippines.

Hi Bob! you're such a great man! thanks for your assistance! I've read most of your posts and you sound like an attorney. Are you? You're so smart man!

I should have known that I should put the 4 year + 1 day rule.

I have read the story of andrea4prez. And we have similar situation. the only difference is she applied 3 years + 10 months since she stayed in the Philippines. Actually, if you will notice on my timeline. I did file Jan 2009, but my travel date is from October 2003 - June 2004. If they will countback the exact 5 years. They will start counting on Jan 2004, if that's how they do that, it will appear that my travel time is less than 6 months (from Jan 2004 up to June 2004)
Do you think it will still be considered as breaking the continuous residency requirement?
If I were to ask if I broke the continuous residency, is it safe to answer that I believe I did not?

Thank you for you sharing us your knowledge and helping us here.

 

[andrea4prez]

actually when I submitted my N400 last Feb 2008, i was EXACTLY 4 years and 5 days. they still didn't let me get my citizenship because they said, they didnt see ties that I am really planning to go back to USA while I was studying and also, i did the same mistake of not using the 4 years and 1 day rule in the N400 paper.

now I reapplied last friday,FEB. 2009 and im exactly 5 YEARS and some months...
when i was interviewed last Oct 2008, they requested me to show
1.)tax papers to prove i worked here or to prove that I am dependent
2.) re-entry permit
3.) other proofs that i really have ties here (i submitted bank statements )
I submitted everything and still denied.

GOOD LUCK! HOPE YOU HAVE BETTER LUCK THAN ME

Hi Bob! you're such a great man! thanks for your assistance! I've read most of your posts and you sound like an attorney. Are you? You're so smart man!

I should have known that I should put the 4 year + 1 day rule.

I have read the story of andrea4prez. And we have similar situation. the only difference is she applied 3 years + 10 months since she stayed in the Philippines. Actually, if you will notice on my timeline. I did file Jan 2009, but my travel date is from October 2003 - June 2004. If they will countback the exact 5 years. They will start counting on Jan 2004, if that's how they do that, it will appear that my travel time is less than 6 months (from Jan 2004 up to June 2004)
Do you think it will still be considered as breaking the continuous residency requirement?
If I were to ask if I broke the continuous residency, is it safe to answer that I believe I did not?

Thank you for you sharing us your knowledge and helping us here.

 

[andrea4prez]

To add

TO ADD to this- i also submitted my california ID to show I applied in 2002, employment verfication from year 2004-2008, notarized affidavit from my aunt that i was her dependent....

actually when I submitted my N400 last Feb 2008, i was EXACTLY 4 years and 5 days. they still didn't let me get my citizenship because they said, they didnt see ties that I am really planning to go back to USA while I was studying and also, i did the same mistake of not using the 4 years and 1 day rule in the N400 paper.

now I reapplied last friday,FEB. 2009 and im exactly 5 YEARS and some months...
when i was interviewed last Oct 2008, they requested me to show
1.)tax papers to prove i worked here or to prove that I am dependent
2.) re-entry permit
3.) other proofs that i really have ties here (i submitted bank statements )
I submitted everything and still denied.

GOOD LUCK! HOPE YOU HAVE BETTER LUCK THAN ME

 

[Bobsmyth]

Hi Bob! you're such a great man! thanks for your assistance! I've read most of your posts and you sound like an attorney. Are you? You're so smart man!

I should have known that I should put the 4 year + 1 day rule.

I have read the story of andrea4prez. And we have similar situation. the only difference is she applied 3 years + 10 months since she stayed in the Philippines. Actually, if you will notice on my timeline. I did file Jan 2009, but my travel date is from October 2003 - June 2004. If they will countback the exact 5 years. They will start counting on Jan 2004, if that's how they do that, it will appear that my travel time is less than 6 months (from Jan 2004 up to June 2004)
Do you think it will still be considered as breaking the continuous residency requirement?
If I were to ask if I broke the continuous residency, is it safe to answer that I believe I did not?

Thank you for you sharing us your knowledge and helping us here.

In theory they will look at the last 5 years before you applied and you might be fine if you were just under 6 month limit outside the US. However, in practice USCIS is not consistent with this type of adjudication. The IO at interview might want you to produce evidence of US residential ties for 2004. Just be prepared with documentation either way at interview.

 

[musashi]

actually when I submitted my N400 last Feb 2008, i was EXACTLY 4 years and 5 days. they still didn't let me get my citizenship because they said, they didnt see ties that I am really planning to go back to USA while I was studying and also, i did the same mistake of not using the 4 years and 1 day rule in the N400 paper.

now I reapplied last friday,FEB. 2009 and im exactly 5 YEARS and some months...
when i was interviewed last Oct 2008, they requested me to show
1.)tax papers to prove i worked here or to prove that I am dependent
2.) re-entry permit
3.) other proofs that i really have ties here (i submitted bank statements )
I submitted everything and still denied.

GOOD LUCK! HOPE YOU HAVE BETTER LUCK THAN ME

Hi Andrea,

Thank you so much for your quick response on my queries, Im just a little confuse, on your previous post, the timeline that you give is

Here the OP's timeline put together from previous posts:

July 2002 Got GC
August 2002-April 2003 Out of US for 8 months (presumed break in continuous residency)
April 2003- May 2003 In US
May 2003-April 2004 Out of US for 11 months (presumed break in continuous residency)
April 2004 in US with no more breaks in continuous residency

Applied for Naturalization Feb 2008
Application denied Nov 2008, could not overcome presumption on break of continuous residency

If you just came back in US last April 2004 and submitted your N400 on Feb 2008, counting backward, you are in US for just 3 years and 10 months. If this is the real timeline, maybe its the reason why you got denied?

Please clarify the timeline, I'm so worried now, at first I am so confident because of the 4 year + 1 day rule, but now I am really worried after reading cases that denies their application even they qualify on a 4 year + 1 day ruling.

Thank you so much Andrea. Goodluck to your next application. May we all be blessed with approval.

Please response on my questions regarding your timeline. Thanks a lot.

 

[andrea4prez]

i was actually wrong, i checked my papers, my priority date was March then, i was out for 9 MONTHS from 2003-2004...i was confused with my passport dates when i posted original post. I was interviewed Oct. 2008.

Hi Andrea,

Thank you so much for your quick response on my queries, Im just a little confuse, on your previous post, the timeline that you give is

Here the OP's timeline put together from previous posts:

July 2002 Got GC
August 2002-April 2003 Out of US for 8 months (presumed break in continuous residency)
April 2003- May 2003 In US
May 2003-April 2004 Out of US for 11 months (presumed break in continuous residency)
April 2004 in US with no more breaks in continuous residency

Applied for Naturalization Feb 2008
Application denied Nov 2008, could not overcome presumption on break of continuous residency

If you just came back in US last April 2004 and submitted your N400 on Feb 2008, counting backward, you are in US for just 3 years and 10 months. If this is the real timeline, maybe its the reason why you got denied?

Please clarify the timeline, I'm so worried now, at first I am so confident because of the 4 year + 1 day rule, but now I am really worried after reading cases that denies their application even they qualify on a 4 year + 1 day ruling.

Thank you so much Andrea. Goodluck to your next application. May we be blessed with approval.

Please response on my questions regarding your timeline. Thanks a lot.

 

[andrea4prez]

ALSO, reason on denial letter is: i was not able to prove that i have ties here in america for all those times i was in the philippines while going to school...i also showed them my school records to prove that i was really going to school those years. then the one who interviewed told me also that I did not check the other tab on the N400 application to prove that I was applying based on the 4 year and 1 day rule.

i was actually wrong, i checked my papers, my priority date was March then, i was out for 9 MONTHS from 2003-2004...i was confused with my passport dates when i posted original post. I was interviewed Oct. 2008.

 

[PR81502]

You are missing the point.

ALSO, reason on denial letter is: i was not able to prove that i have ties here in america for all those times i was in the philippines while going to school...i also showed them my school records to prove that i was really going to school those years. then the one who interviewed told me also that I did not check the other tab on the N400 application to prove that I was applying based on the 4 year and 1 day rule.

Based on the manual(unable to locate it right now) they are supposed to adjudicate a case if the applicant qualifies under another rule. Let's supposed someone applies under the 3 years rule (married USC) but had not completed the 3rd anniversary of their marriage at filing the N-400 but the person qualified under the 5 years rule they are suppose adjudicate the N-400 based on the 5 years. It is either they are not familiar with the rule 4 years plus 1 day or they delay the case so by the time they make a decision it is almost five years of CR and it is better to reapply.


When did you return for good to the USA April 2004 or Feb 2004?

Let's suppose you returned 4/21/04 then 4 years + 1 day = 4/22/08 then you should not have applied before that date. If that is the case this is the reason for your denial since you broke the continuous residence requirement during the 9months going back 5 years.

If you returned 2/21/2004 and applied 2/22/2008 then their reason for denial is confusing.

So if you applied before 4years and 1 day and you could not show strong enough ties to counter the presumptive break in CR during the 5 year period they will always deny the case.

C) Absences of Between Six Months and One Year . Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under 8 CFR 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence unless the applicant can establish otherwise to the satisfaction of USCIS . This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws.




If the applicant claims that he/she did not disrupt the continuity of residence you must ask additional questions about the absence and the nature of his/her claimed continuous residence in the United States. Some of the things that you should ask for are:


• Evidence that the applicant did not terminate his or her employment in the United States;


• Evidence that the applicant's immediate family remained in the United States;


• Evidence that the applicant retained full access to his or her United States abode; or


• Evidence that the applicant did not obtain employment while abroad. Also, this would normally include evidence of how he/she supported him/herself during the absence.


You should ask for other evidence if the items listed above do not cover the issue fully in a specific case.


If the applicant is unable to establish that he/she did not disrupt residence, he/she will be ineligible for naturalization. The applicant will be eligible to re-apply for naturalization, four years and one day (two years and one day if applying under section 319(a) of the Act) from the most recent date that he/she returned to the United States. See the letter from the Headquarters Office of Naturalization and Special Projects to Messr. Kiblan and Battles dated September 22, 1993, located in Appendix 74-13 .

 

[PR81502]

i was actually wrong, i checked my papers, my priority date was March then, i was out for 9 MONTHS from 2003-2004...i was confused with my passport dates when i posted original post. I was interviewed Oct. 2008.

With a PD of 3/2008 it was still before 4 years + 1 day. Also when you were interviewed would have no bearing in your case. What was relevant were the dates of your last break in CR 5/2003 and 4/2004(when you resumed CR) and your PD 2/2008 or 3/2008. Also when an applicant files a N-400, the date signed on the form and PD are carved in stone even if it takes them 12 months to make a decision on the case from PD to denial. So if you did not qualify at filing then it makes no difference if they make a decision 12 months after filing. Hence the decision is based on all the eligibility requirement at filing.

If your PD was before the 4 years + 1 day and you could not prove the ties to the US they would have always denied your case.

So please give the exact date of your return after the 9 months travel(2003-2004). Is it FEb/2004, March/2004 or April/2004 that you returned for good?

Many people are in a similar situation hence accurate info will go a long way in assisting everyone.

Thanks and good luck in the most recent N-400 application.

 

[PR81502]

Here is the part of the manual I was referring to.

ALSO, reason on denial letter is: i was not able to prove that i have ties here in america for all those times i was in the philippines while going to school...i also showed them my school records to prove that i was really going to school those years. then the one who interviewed told me also that I did not check the other tab on the N400 application to prove that I was applying based on the 4 year and 1 day rule.

b) Part 2: Basis for Eligibility . (check one)


(1) Introduction to Part 2 . Part 2 of the N-400 should clearly note the section of law under which the applicant is filing his/her application. You should review the case for eligibility under any provisions of the law rather than to deny a case under the strictest provisions of the law. In other words, if an applicant can establish eligibility under any section of law, then you should adjudicate the application under that section of law. If the applicant in ignorance or error overlooked a section of law favorable to him/herself, yo u are responsible for correcting that error.


The applicant bears the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization. See 8 CFR 316.2(b) . Remember, as you examine applicants for eligibility, to conduct the examination so that you determine eligibility under any provision applicable, covering all aspects of eligibility under the appropriate section. For example, if an applicant is not eligible under section 329 but appears eligible under section 319, ask the appropriate questions for that section.

I think if you applied before 4years+ 1 day the IO based the denial on the break in CR. If you apply on/after 4 years + 1 day then it only matters whether you abandoned you LPR status or you broke CR. If the IO concluded you broke your ties then according to the manual the 4 years + 1 day apply. They need to start reading the laws and their own manual. It is like they are punishing folks, but it really comes down to money(application fees). It seems as long as the case is not straight forward to the IO they get the easy way out.
Congress needs to amend the law to address that; if some is presumed to break CR for an absence less than 1 year then they qualify to reapply after 4 years + 1 day upon return as long as they did not abandon LPR status.

I realize by the time they deny the case it is almost time to reapply under the 5 years minus 90 days rule. So it is a waste of time and money to appeal. So unless someone wants to prove that they qualify under the 4 years + 1 day rule it is just better to reapply.

 

[musashi]

Hi PR85102,

thank you so much for your very clear explaination.

in my case, what problems do you think I might encounter? here's my timeline

October 3, 2003 - June 6, 2004 (8 months since I left the US, but 5 months if the counting will start on the day that I apply for the N-400 which is Jan. 12, 2004) I applied Jan 12, 2009
August 17 - September 8 ,2005 (21 days)
August 25 - September 16, 2006 (21 days)
August 30 - September 17, 2008 (17 days)

I have 2004-2008 IRS, but my 2004 IRS covers the month of August - Dec (I started working August 2004)
We have year 2000 contract of house rental (but its under my father & step mom's name)
I opened my bank year 2003.
TOR that I really went to school in the Phils. (during my absences last Oct 3, 2003 - June 6, 2004)

Thanks in advance for your thoughts.

 

[PR81502]

Hi PR85102,

thank you so much for your very clear explaination.

in my case, what problems do you think I might encounter? here's my timeline

October 3, 2003 - June 6, 2004 (8 months since I left the US, but 5 months if the counting will start on the day that I apply for the N-400 which is Jan. 12, 2004) I applied Jan 12, 2009
August 17 - September 8 ,2005 (21 days)
August 25 - September 16, 2006 (21 days)
August 30 - September 17, 2008 (17 days)

I have 2004-2008 IRS, but my 2004 IRS covers the month of August - Dec (I started working August 2004)
We have year 2000 contract of house rental (but its under my father & step mom's name)
I opened my bank year 2003.
TOR that I really went to school in the Phils. (during my absences last Oct 3, 2003 - June 6, 2004)

Thanks in advance for your thoughts.

You are welcome. The IO is going to ask you to prove US ties, but technically what you what to show is you did not abandon your residence.
http://forums.immigration.com/showthread.php?t=288288 This link by JohnnyCash is very helpful.

Everything you have above is good and also get an affidavit from your mom and dad indicating your primary abode/residence was their home. Also get a letter from the bank indicating when you opened your account and it has been an active account.

This what a lawyer told me specifically about my case " Your trips outside the U.S. will most likely be deemed to have broken your contunuity of residence in the U.S. for naturalization requirements. If you came back in November 2004 and have remained since, you should be eligible to pursue natz in Nov. 2008---4 years and one day after your return. Your long absences will be analyzed, as well as your tax issues because that may come up duirng N-400 process/interview."


Basically you should be okay as other members have said just take as much evidence as you can. If you are denied don't waste time and money appealing the denial just reapply 5 years- 90days. Just present a strong case and let the IO know that your attorney said you meet the 4 years + 1 day criteria. It makes absolutely no sense to ask an applicant with 8 months stay to wait 5 years and another with 1 year absence to apply after 4 years + 1 day. Break in continuous residence is the issue. If CR is broken then the 4 years + 1 day apply.

Good luck in your case but my feeling you should be okay but present a strong case and make mention of the law and the manual. Maybe just in case the officer will go read it before denial of your case.

But I would not worry to much about that not worth it.

 

[musashi]

Thanks again

You are welcome. The IO is going to ask you to prove US ties, but technically what you what to show is you did not abandon your residence.
http://forums.immigration.com/showthread.php?t=288288 This link by JohnnyCash is very helpful.

Everything you have above is good and also get an affidavit from your mom and dad indicating your primary abode/residence was their home. Also get a letter from the bank indicating when you opened your account and it has been an active account.

This what a lawyer told me specifically about my case " Your trips outside the U.S. will most likely be deemed to have broken your contunuity of residence in the U.S. for naturalization requirements. If you came back in November 2004 and have remained since, you should be eligible to pursue natz in Nov. 2008---4 years and one day after your return. Your long absences will be analyzed, as well as your tax issues because that may come up duirng N-400 process/interview."


Basically you should be okay as other members have said just take as much evidence as you can. If you are denied don't waste time and money appealing the denial just reapply 5 years- 90days. Just present a strong case and let the IO know that your attorney said you meet the 4 years + 1 day criteria. It makes absolutely no sense to ask an applicant with 8 months stay to wait 5 years and another with 1 year absence to apply after 4 years + 1 day. Break in continuous residence is the issue. If CR is broken then the 4 years + 1 day apply.

Good luck in your case but my feeling you should be okay but present a strong case and make mention of the law and the manual. Maybe just in case the officer will go read it before denial of your case.

But I would not worry to much about that not worth it.

Thanks again for your very well said recommendation. Goodluck to your application too.
Will keep you posted on mine.

 

[HudsonValley]

To apply or to wait?

Guys, need your opinion.
Came to USA in June 2006, while was still employed in my home country.
Stayed for 2 months, got GC (family based), went to my home country for 82 days. All this time was emplyed in my home contry.
Quit my job in October 2006 and returned to USA for good.
What should I do now, apply in April 2009 (3 y - 90 d) or wait and apply in Aug 2009 (October 2006 + 3 y - 90 days).
I have recevied both recommendations, to apply in March 09 or to wait and do it in Aug 09. So I'm still wondering, on one hand I don't want to wait any longer than necessary or the other - don't want to waste the fees if I'm going to be denied.
Thanks in advance,
HudsonValley

 

[Jackolantern]

Guys, need your opinion.
Came to USA in June 2006, while was still employed in my home country.
Stayed for 2 months, got GC (family based), went to my home country for 82 days. All this time was emplyed in my home contry.

I presume that's via marriage to a US citizen, given that you're talking about 3 years instead of 5 years?

Quit my job in October 2006 and returned to USA for good.
What should I do now, apply in April 2009 (3 y - 90 d) or wait and apply in Aug 2009 (October 2006 + 3 y - 90 days).

October 2006 + 3y - 90 days would be July 2009, not August 2009.

I have recevied both recommendations, to apply in March 09 or to wait and do it in Aug 09. So I'm still wondering, on one hand I don't want to wait any longer than necessary or the other - don't want to waste the fees if I'm going to be denied.

Is there some urgent reason you need citizenship, that you are willing to risk denial in order to apply 4 months earlier? If not, just wait out the 4 months. If you apply in March and get denied, you would have wasted not only the fees, but the time you spent during the process until denial would also be a waste. Trying to save 4 months could result in wasting 6-12 months.

On the other hand, your chances of denial are not very high, because you spent as much as 2 months after initially obtaining your GC, and your overseas trip was only 82 days.

Ultimately, it is up to you to decide how important the time and money is to you. We can't make that decision for you; we don't know your priorities regarding time and money and risk.

 

[HudsonValley]

I presume that's via marriage to a US citizen, given that you're talking about 3 years instead of 5 years?

October 2006 + 3y - 90 days would be July 2009, not August 2009.

Is there some urgent reason you need citizenship, that you are willing to risk denial in order to apply 4 months earlier? If not, just wait out the 4 months. If you apply in March and get denied, you would have wasted not only the fees, but the time you spent during the process until denial would also be a waste. Trying to save 4 months could result in wasting 6-12 months.

On the other hand, your chances of denial are not very high, because you spent as much as 2 months after initially obtaining your GC, and your overseas trip was only 82 days.

Ultimately, it is up to you to decide how important the time and money is to you. We can't make that decision for you; we don't know your priorities regarding time and money and risk.

Hi Jackolantern,
thanks for reply.
Yes, it's marriage based. I wrote August (not July), because I quit on Oct 31st 2006, bo basically if I wait extra months, I would apply Aug 1st.
My major concern is not 82 days absence, but my employment in my home contry.
Theoretically IO might interpret it as lack of establishment of ties in USA, I've read somewhere that overseas employment can be considered as grounds for denial.
HudsonValley