Physical Presence rule after filing N-400?

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b0nd

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I had applied for Citizenship in Sep-2007 and had my interview in August-2008. The problem I had at the interview was with my trips abroad. At the time when I filed N-400 I had enough time spent in the U.S. (about 21 months) but the Immigration officer started calculating my recent trips i.e. after filing the N-400 uptil the day of interview. By that rule, I was short of the physcial presence requirement. No decision was taken at that time and he told me to wait for a decision in mail.

Now after two months I received a letter from USCIS requesting more documentation. One of the things they need is that they want me to calculate my trips for past 3 years until now. I consulted an Immigration lawyer and he told me that the physical presence rule does not apply after you have filed the application but you should not violate the continuous residency requirement which I did not. Is this correct? I called USCIS help line and they told the same thing. I have read on the forums that the physical presence requirement must be met until the date of Oath.

Should I retain a lawyer at this point to communicate with USCIS or should I go ahead and respond to USCIS myself? What do you guys suggest?
 
I don't know a good answer to your question, but I'd like to know how many days you had in the US before you filed, and what the reasons were for your long absence from the US, and where you filed. I'm going to be out for a while too, so I want to know how this thing will work for me possibly. Thanks :)
 
I applied on the basis of marriage to a U.S. citizen. You become eligble after 3 years in such a case. At the time I applied I had 21 months of Physical presence in the U.S. which is 3 months more than the required limit. I have a U.S. based IT business and the back office is overseas so I have to take frequent trips back and forth.
 
By law, the continuous residency requirement needs to be fulfilled up to oath date. The physical presence requirement only needs to be filled up until the day you apply.
In your case, the back and forth traveling was the trigger to question your overall US residential ties, regardless if these trips were under 6 months. You must therefore be able to show US residential ties for the entire statutory period.
 
You are right. I believe that's why USCIS has requested me to provide joint bank statement, utility bills, credit card statements, health insurance, life insurance and lease/mortgage papers. Now I can not provide most of these because due to the nature of my work I have to stay abroad for 4-5 months at a stretch. It's difficult to run software development remotely. There's also no point in having insurances and utilities when you are out of the country for 10-11 months a year. The lawyer I consulted told me that the joint tax transcripts alone should be enough to show them you have no intension of abandoning your citizenship/immigrant status. Apart from that the business is based in the U.S. and I even provided the IO my business tax returns. The lawyer suggested writing a cover letter explaining all this stuff.
I am considering retaining the lawyer at this point so I can fight this in a better way (my application hasn't been denied yet) but just wanted to get some feedback on the forum first if it's worth it.
 
There's no guarantees the tax receipts alone will be sufficient for the IO to decide if you abandoned US residency ties. If you didn't keep a US residence (proof via rental to mortage payments) while outside the country, it will reflect negatively against you if the IO asks for it.
 
As I am residing with my In-laws, the lawyer suggested having an affidavit submitted by them stating they are taking care of housing and utilities for us. Should that be OK?
I have another question, will USCIS accept any utility bills or health insurance documents that are one year old?
 
I have one question. In the letter USCIS recently sent me they asked me to list all my trips for past 3-years uptil now. I am over seas right now. Should I list this trip which is not complete yet? They are requesting to list round trips as you can see in N-400. I am not trying to hide it but just avoiding listing it to not give them impression that I am still abroad and don't care about the Citizenship. Obviously I will disclose it on Oath day if I am approved.
 
When do you intend to return? List the start date of that trip, and state the intended return date and explain it as such.
 
You'll either have to indicate the travel now or on the oath letter (if you're preliminary approved). Either way, it will bring further scrutiny into your US residency ties since you're working overseas.
Did you originally not qualify for an N-470?
 
I had no clue about filing N-470 when I filed or when I started this project and took long trips abroad. I didn't know a lot about all this until my Interview where all these issues came up. I only knew that I must complete my Residency requirement preceding the date of filing and shouldn't break the physical presence rule. Did not know any other requirements after filing.
At the Oath ceremony aren't they looking only at continuous residency breakage (more than 6 month travel)? If I disclose now they might be looking futher in to my Residential U.S. ties as you said. At the Oath I am assuming I just need to show the IO my passport stamps for recent trip which obviously will be less than 6 months.
 
Your US residential ties are under scrutiny up until the oath. This involves verifying your travel history during the statutory period up until oath date. For example, a continuous back and forth travel pattern of trips just under 6 months is a sure bet that you grilled extensively on your US residency ties eventhough you may not have technically broken physical presence or continuous residency requirement. Many applicants think they can take as many trips as they want under 6 months without any consequences only to find out during interview that they are required to show proof of US residency ties.
 
Ok, I got the re-interview letter. It looks like they are done with my frequent trips abroad and don't have a problem with it anymore. Now they are asking for more proof of business. They want to see the bank transactions/transfers abroad, contracts, invoices etc. I had already provided business tax returns and plan on showing them rent/lease agreement for the office abroad, utility bills, bank account statements. Should that be enough?
They are also asking for more evidence of bona fide marriage. They even want me to bring the ID for my wife in addition to individual bank and credit card statemnts for 3 years. Should I take my wife and child to the interview? Will that help? Will they even let them in the waiting room or in the IO's office?
 
It's a US based business, right? You want to be able to show them that the business is US owned and based in US and that they asked you to travel overseas on a project.

As for bona fide marriage, it helps to bring wife and kid to interview as some IOs will want to question them on the spot to make decision. It doesn't mean they will, but it gives them a chance to if they want to. Just be sure to bring all the documents they asked for.
 
Yes, it's a U.S based business and I own it. As it's software development so I have to be at the overseas office most of the time. I will take as much evidence as I can gather to the interview for business.
In the letter they say "You are lacking documentation showing or establishing bona fide marriage. Please bring with you, since you claim no joint assets or liabilites, individual bills, cellphones, W2's etc. for each of you individually. Bring NY State Driver's license or State ID for both of you. Bring birth certificate for ALL children born to you both."
I am implying that they want me to bring my wife to the interview with her ID. Isn't it obvious? What do you think?
 
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I read that to mean to bring all documents that show that both of you have lived together in order to establish a bonafide marriage. What they want to see is that you have lived together during the entire statutory time. Having her present at interview is not going to show them that she lived with you, but it will allow the IO (if he/she chooses) to ask her a few questions to check for consistency.

As for your business, bring the paperwork that shows you have founded it as a US business (ie: incorporation papers)
 
I just had a quick question. Do they take english/civics test at the re-interview or the old one (taken about 100 days ago) still valid? I indeed past the test. I wanted to know in so I prepare.
 
The physical presence rule stops on application date. I applied based on 3 years rule.

By application date I had 380 days out of the country, by interview date I had 538 days out and by oath date I had 570 days out....
 
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