Naturalization with Several absences for less than 6 months each

[lck2]

Hi all, thank you very much for this space to ask questions.

The case: I got my GC in July 2014 while I was working in the UK. I was working in the UK since January 2014 when I received my GCard. I was working in the UK sent as an expat by my US company.
The issue: Since I received my GCard (July '14), and until Sept 2016, I came to the US for a week (stayed for only 5 days) every 6 months, to keep my GCard. I was never away of the US for more than 180 days. But my issue is that I did this "come-and-go-every- 6months" strategy for 2 years, until I relocated back in the US in Sept 2016 until now.

In theory, I know that under new scrutiny, I can be in trouble, since I was working outside the US, I have several stays outside the US (none of which lasted more than 6 months), I don't own a house in the US (I have relatives here that count as " family").

The question: I applied for naturalization last September and had my interview scheduled for this April, what are my chances to get citizenship and how can I do (i.e. what evidence should I collect) to prove ties to the US?

Thank you very much!!!

 

[Fin]

It’s possible “in theory” but not straight forward. Unlike what many people think, the rule for abandoning green card is based on intent rather than just the time you are outside the country. Someone can technically be out for a week with the intent of leaving permanently and lose their GC. However it doesn’t happen in theory as the government has to prove their case before an IJ. In your case, for naturalization, you need to show “physical presence/continuous residence” both cumulatively and for a single trip. Since you came back for a few days, you seem to be okay for each trip but do you have the total cumulative presence of 30 months together? If yes, then you theoretically qualify. You will be questioned about your intent to check if you abandoned your residence. You can prove your case by showing that you maintained bank accounts, had a mortgage, family ties etc. The fact that you were employed outside works against you. Were you transferred offshore by a US based company? Can you present such a letter from your company? I would definitely retain an attorney in such circumstances. You have some time since interviews are rescheduled due to pandemic. Else just wait for 3 more years and re-apply.

 

[lck2]

Thank you very much for your reply. I do have a cumulative presence of 30 months (I returned to the US in 2016 and stayed continuously until now).

I sensed that I needed to craft my case carefully and use the words they want to hear and go with the right documents in the few minutes that I have in front of the official.

I will consider an attorney. Thank you very much.

 

[Fin]

Thank you very much for your reply. I do have a cumulative presence of 30 months (I returned to the US in 2016 and stayed continuously until now).

I sensed that I needed to craft my case carefully and use the words they want to hear and go with the right documents in the few minutes that I have in front of the official.

I will consider an attorney. Thank you very much.

That's smart...this is a case where a presence of attorney would really help during the interview since the questions could be tricky and the attorney can stop the officer if they try to cross the line (happened in my case). Some attorneys even present a legal memorandum along with the evidence to show the officer how you qualify. After re-reading your post, I think your attorney has enough meat to make your case. You have been here for 3+ years since Sep 2016, you were sent by a US company for what looks like temporary work (as long as you can present a letter) and you do have family ties and I would assume bank accounts as well? Good luck and keep us posted

 

[lck2]

Thank you Fin.
I see your point, you mean that I should bring an attorney with me to the interview day!

If you happen to know of any attorney that do this kind of service in the NY area, please I will be happy to take your recommendation.

Thanks, Lucia.

 

[Fin]

Thank you Fin.
I see your point, you mean that I should bring an attorney with me to the interview day!

If you happen to know of any attorney that do this kind of service in the NY area, please I will be happy to take your recommendation.

Thanks, Lucia.

Yes, I would recommend that you seek an attorney to prepare your evidence and accompany you. I made the mistake of not having anyone with me since mine appeared to be a simple case and the officer started asking questions beyond his scope of review. At the time I had not researched immigration statutes, procedures, regulations and federal cases so I felt obligated to answer such questions. Then my case got delayed and I had to sue them in federal court. Once the US attorney got involved, this whole charade fell apart and they naturalized me. The point I am making is that they try to use your own testimony against you. It’s like going on a witch hunt. I’m not saying it happens for everyone but it’s happening more and more in the recent times and it’s better to be safe than sorry.

As for the attorney recommendation, I’m not in the NY area but you can look up avvo and read reviews. Then based on that try to call up a couple of them and hear their views on your case and how they can help you. Many attorneys have free initial consultation. Hire someone who you feel comfortable with.

Good luck.

 

[SusieQQQ]

FYI I had my naturalizaction interview late last year, I had a shorter version of your issue (one 5.5 month absence, back a week, another 5 months till I moved permanently). I did get asked in some detail about ties I had maintained during these absences. I presume you were filing taxes all the time, the fact that I had filed taxes for that year (the officer kept my transcript, which is not usual) seemed the most persuasive evidence for her. I had a bank account, but not much else during that time, I did not use a lawyer. Fin also gave sound advice about other factors you can present.

as a reminder, the part of the manual that references this says:
An officer may also review whether an applicant with multiple absences of less than 6 months each will be able to satisfy the continuous residence requirement. In some of these cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time.
An LPR’s lengthy or frequent absences from the U.S. can also result in a denial of naturalization due to abandonment of permanent residence.
i do not believe that asking questions about this goes “beyond the scope of review”' it’s clearly cited there as being a factor to examine,
I didn’t notice anyone having attorneys for normal n400 interviews the day I was there. There were some for couples doing removal of conditions. Of course, if you feel having an attorney help to prepare the evidence will give you peace of mind given the length of time you were effectively outside the US for, then by all means do it, better safe than sorry.

By the way, on what basis did you get your green card? I understand Fin had an asylum case, which may have complicated matters. I was diversity visa, so straightforward other than explaining the absence. That may also factor into your decision.

 

[lck2]

Thank you very much everyone for taking the time to help me. In my case, I was appointed to an expat job (short term assignment) by a US based company in January 2014. Six month later, in July 2014, while I was already in London, I received my Green Card (sponsored by my company).

So I got my Green Card in the mail while I was already abroad!

I did file taxes every single year. At that time, I didn't know what to put on the resident portion of the taxes, so some times I filed as "Resident of UK". I wasn't as informed back then.

Susie - May I ask you exactly what they asked you on the interview regarding your time abroad? did they make a big deal about it?
Did you only proved your residency with taxes and bank accounts?
Did you have to wait months between your interview and oath?
And if it's not too much to ask, were you working or studying abroad ?(working abroad makes a very big difference).

Thank you very much one more time, your information is golden as I am very nervous about this point.
Stay safe, Lucia.

 

[SusieQQQ]

Thank you very much everyone for taking the time to help me. In my case, I was appointed to an expat job (short term assignment) by a US based company in January 2014. Six month later, in July 2014, while I was already in London, I received my Green Card (sponsored by my company).

So I got my Green Card in the mail while I was already abroad!

I did file taxes every single year. At that time, I didn't know what to put on the resident portion of the taxes, so some times I filed as "Resident of UK". I wasn't as informed back then.

Susie - May I ask you exactly what they asked you on the interview regarding your time abroad? did they make a big deal about it?
Did you only proved your residency with taxes and bank accounts?
Did you have to wait months between your interview and oath?
And if it's not too much to ask, were you working or studying abroad ?(working abroad makes a very big difference).

Thank you very much one more time, your information is golden as I am very nervous about this point.
Stay safe, Lucia.

Yes, I did feel she made quite a big deal about the absences. She wanted to know reasons for the absence and went into some detail about the kind of factors that proved residence. I know others in similar circumstances who had an easier time of it, I don’t know if this is something that they are focusing more on recently, or if I just happened to have one of those officers who likes to make sure every i is dotted and every t is crossed. (Yes, we were working, we immigrated as a family and there were certain things we had to wrap up that got a little complicated.)

So, in your particular situation I see a positive and a big negative. The positive is that the same company that sponsored your GC sent you overseas, both making the absence easier to explain but also in its way showing another tie. The negative is that you filed tax as a resident of another country. So, I’d definitely suggest you talk to an immigration lawyer about this, I believe there is a way to retroactively correct past tax returns but I’m not sure how it’s done. What did you answer to the n400 question “Have you called yourself a "non-U.S. resident" on a Federal, state, or local tax return since you became a lawful permanent resident?”

It was about 6 weeks between interview and oath for me, but that was before the pandemic hit of course. I also understand the wait time can vary widely between offices, and depending how quickly the application is approved.

 

[Fin]

I did file taxes every single year. At that time, I didn't know what to put on the resident portion of the taxes, so some times I filed as "Resident of UK". I wasn't as informed back then.

If you filed as an NR, it could be a huge issue if it is not fixed on time! As Susie said, there is a specific question on N400 that asks if you filed your taxes as a Non-resident. Even if you are outside the US, you are supposed to file the taxes as a resident and show your foreign income which you can deduct. Filing taxes as a Non-resident can cause a rejection under good moral character and federal courts have upheld this determination as well. All is not lost. First, get your tax statements from IRS (can be done online) and check how you filed your taxes. If you have filed as a non-resident, there may be a way to get this corrected by filing a 1040-X. If this has happened, you may also need to consult a tax professional in addition to an immigration lawyer. Thankfully you have enough time due to the pandemic to get these issues sorted out but if I were you I would get started asap. On a side note, based on my own mistakes, I also recommend everyone to read and be aware of statutes/regulations and some basic federal cases related to the immigration benefit you are applying for. I realized this when I got blindsided during my interview. You should always know the rules of the game you are playing.

Also, remember that there is a huge disparity in how each USCIS bureaucrat might look at your application so a lot of how your interview might go and what you may be asked is a matter of luck. But if you are well prepared and present evidence to meet the requirements as per the law, you should be able to win your case. I honestly think that you have a good case as far as the abandonment of residence goes.

 

[lck2]

Hi all!
So I just wanted to thank everyone who contributed on my case and tell you that my outcome was positive. I've just got my Naturalization ceremony today. I would like to share my story to give back to the community.

To remind everyone, my case was the following:
1. Several trips outside the US (550 days abroad) for almost 6 months each.
2. I was working for 2 years in England for a British company. During those years I was coming back for 3-4 days to the US just to keep my GCard, and then back to England to work and live there.
3. I had one trip where I was 179 days out of the country, came back to the US for 3 days and then went back to England.
4. Filed taxes as a resident, always as a resident, never as an "NR'.

My case was successful but it went to a second revision, since they wanted to manually count the trips and make sure that I wasn't more than 6 months abroad. I politely emphasized that 179 days is not 180 days, so I was in compliance.

Some useful tips:
1. A lot of this is played on the psychology arena. Wear your best clothes, be the submissive good ship, play the "good moral character" part.
2. If you have a lawyer preparing the application for you, have her on the phone. Some little extra pressure for them and it can help you on gray cases like mine. In my case, I needed to "remind" them that 179 days is not 180.
3. I handed them some extra evidence to show that I had a foot set in the US the entire abroad time. In my case, a family house and my University enrollment. More is more, bring all those papers with you.

Thanks to everyone and good luck!

 

[lck2]

If you filed as an NR, it could be a huge issue if it is not fixed on time! As Susie said, there is a specific question on N400 that asks if you filed your taxes as a Non-resident. Even if you are outside the US, you are supposed to file the taxes as a resident and show your foreign income which you can deduct. Filing taxes as a Non-resident can cause a rejection under good moral character and federal courts have upheld this determination as well. All is not lost. First, get your tax statements from IRS (can be done online) and check how you filed your taxes. If you have filed as a non-resident, there may be a way to get this corrected by filing a 1040-X. If this has happened, you may also need to consult a tax professional in addition to an immigration lawyer. Thankfully you have enough time due to the pandemic to get these issues sorted out but if I were you I would get started asap. On a side note, based on my own mistakes, I also recommend everyone to read and be aware of statutes/regulations and some basic federal cases related to the immigration benefit you are applying for. I realized this when I got blindsided during my interview. You should always know the rules of the game you are playing.

Also, remember that there is a huge disparity in how each USCIS bureaucrat might look at your application so a lot of how your interview might go and what you may be asked is a matter of luck. But if you are well prepared and present evidence to meet the requirements as per the law, you should be able to win your case. I honestly think that you have a good case as far as the abandonment of residence goes.

1. Completely agree. Know the rules very well, be informed, I needed this while in front of the official. I needed to know the 180 rule and make him aware that I knew it. Have a lawyer on the phone if you can.

2. I agree that each official is different, so there is a luck component on how your interview will go and what you are asked. In my case, I went to a second revision, in some other cases, you might not.

 

[Fin]

Congratulations!