Physical Presence Rules

[Pete777]

Hi,
I am a green card holder, I'm currently in the UK.
I was resident permanently in the US from May 1995 to August 2000. At that point I moved to the Uk with work and was in the UK other than a few weeks, or the odd month until January 2003 when I moved back to the States. While out I had re-entry permits or was away less than a year. I then moved back to the UK in September 2004 and again, other than a few weeks here and there and 3 months last year, I have been in the Uk. I am moving back to the States permanently in the next month. My status is fine, I have just been back on a visit. My wife is a US citizen and has been studying nursing in the UK for the last 3 years, so my children have been here - I couldn't leave them. (They were born in the US). Also.... I am in the process of getting divorced! Complicated enough?!
The rules on being physically present in the US seem to state that half of the period of residence must have been in the US. I was physically present in the US for half of the time I have held my Green Card, so does that count? Or does it mean that the most recent history must have all been spent in the US?
Thanks very much,
Pete

 

[sh1996]

The 5 year continuous residency requirement is FROM THE TIME YOU APPLY. And of the 5 years, you need to have been resident in the US for at least half the time. The fact that you lived in the US for 5 years, 8 years ago does not count and in fact is outside the 5 year look back period.

If you apply 2.5 years after you move back, it could go either way. I applied with similar facts. I was in UK on work with a US company and applied almost 3 years after moved back (i.e., counting some of the time in the UK as part of 5 year continuous residency). It could have gone either way at USCIS' discretion. Unfortunately I got a crappy interviewer and my application was denied - without prejudice though. They didn't think I met the continous residency requirement, but accepted that I had no intention of abandoning GC. I decided not to appeal since I'll be eligible to re-apply next year with a clear look back. (Appeal would take about as long with outcome uncertain.) Talk to an immigration lawyer and if they think you have enough facts on your side, have him/her go to the interview with you to make sure the interviewer understands why you've applied so soon. Good luck.

 

[Bobsmyth]

The 5 year continuous residency requirement is FROM THE TIME YOU APPLY.

Continuous requirements must be met up until oath date, not only up until the time you apply for naturalization.

 

[boatbod]

Your continuous residence (or lack thereof) will preclude you from being naturalized in the immediate future. A reentry permit (I-131) does nothing to aid in preservation of residency for natz purposes.

Your normally need 5yrs continuous residence, and during that time, you also need to accrue a minimum of 30 months physical presence. Potentially you could qualify for the 4yr+1day rule, but even that means you won't be eligible to apply until July 2012.

 

[vision1227]

My wife applied for nat. 7/23/08. She became PR 7/2004. We lived in the US until 08/2006. We made it a point for her to be back in the US before 6 months were up to maintain her continuity, she would stay there at my brother's place for a couple of months and then travel back to me abroad. Anyway she was denied 6/27/08, the reasoning the IO gave was that you and your husband file joint tax returns and he works overseas. "Visiting is something you do for 1 or 2 months, not 5" is something else he said. Anyway basically I feel he was making legislation up as he went along. Can anyone give us any advice of what to do now? We are kind of stuck in this limbo, we want to get her the citizenship ASAP, so this 6 month traveling will come to an end. I know about the re-entry permit, but staying out of the country for more than 6 months will basically wash away any time that she has stayed there, and then we would have to start all over again. PLEASE HELP!

 

[warlord]

My wife applied for nat. 7/23/08. She became PR 7/2004. We lived in the US until 08/2006. We made it a point for her to be back in the US before 6 months were up to maintain her continuity, she would stay there at my brother's place for a couple of months and then travel back to me abroad. Anyway she was denied 6/27/08, the reasoning the IO gave was that you and your husband file joint tax returns and he works overseas. "Visiting is something you do for 1 or 2 months, not 5" is something else he said. Anyway basically I feel he was making legislation up as he went along. Can anyone give us any advice of what to do now? We are kind of stuck in this limbo, we want to get her the citizenship ASAP, so this 6 month traveling will come to an end. I know about the re-entry permit, but staying out of the country for more than 6 months will basically wash away any time that she has stayed there, and then we would have to start all over again. PLEASE HELP!

Nope he wasn't making anything up, he realized what you just told us that you weren't residing in the US, but in fact (your wife) visited for a month or so with relatives. In no way a visit like that constitutes as maintaining US residency.

6 Months isn't the hard core rule, if they find reason to believe you are living and residing outside the US even a few months or even less then they can deny you. The 6 months is just a general guidline where anything 6 months or less they have to do more work to prove you broke your continous residency, 6 or more, then you have to prove that you didn't.

It's a big misconception that people assume being away under 6 months and they are fine. This is not the case, if you are gone one month and found you are living and working elsewhere that is grounds enough and all they need to easily deny your application without further question.

People are finding that they are not easily tricked (by the comming back for a short time and living with relatives and leaving again) as people hoped. And many people are now finding this out the hard way...

 

[Jackolantern]

It's a big misconception that people assume being away under 6 months and they are fine. This is not the case, if you are gone one month and found you are living and working elsewhere that is grounds enough and all they need to easily deny your application without further question.

Realistically, taking a one-month trip and returning will not be a problem if it is the only overseas trip. They would really have to fishing and stretching to show that you broke continuous residence. But a string of 9 one-month trips with a week in between is another story.

 

[Jackolantern]

My wife applied for nat. 7/23/08. She became PR 7/2004. We lived in the US until 08/2006. We made it a point for her to be back in the US before 6 months were up to maintain her continuity, she would stay there at my brother's place for a couple of months and then travel back to me abroad. Anyway she was denied 6/27/08, the reasoning the IO gave was that you and your husband file joint tax returns and he works overseas. "Visiting is something you do for 1 or 2 months, not 5" is something else he said. Anyway basically I feel he was making legislation up as he went along. Can anyone give us any advice of what to do now? We are kind of stuck in this limbo, we want to get her the citizenship ASAP, so this 6 month traveling will come to an end. I know about the re-entry permit, but staying out of the country for more than 6 months will basically wash away any time that she has stayed there, and then we would have to start all over again. PLEASE HELP!

You are in the wrong. You had the misconception that it is OK as long as each overseas trip is under 6 months. That is not true. When there is a pattern of multiple trips it can be a problem for you.

See http://boards.immigrationportal.com/showthread.php?p=1759394#post1759394

 

[Bobsmyth]

My wife applied for nat. 7/23/08. She became PR 7/2004. We lived in the US until 08/2006. We made it a point for her to be back in the US before 6 months were up to maintain her continuity, she would stay there at my brother's place for a couple of months and then travel back to me abroad. Anyway she was denied 6/27/08, the reasoning the IO gave was that you and your husband file joint tax returns and he works overseas. "Visiting is something you do for 1 or 2 months, not 5" is something else he said. Anyway basically I feel he was making legislation up as he went along. Can anyone give us any advice of what to do now? We are kind of stuck in this limbo, we want to get her the citizenship ASAP, so this 6 month traveling will come to an end. I know about the re-entry permit, but staying out of the country for more than 6 months will basically wash away any time that she has stayed there, and then we would have to start all over again. PLEASE HELP!

You meant to say she applied for naturalization 7/23/07.

The IO's decision doesn't surprise me since:

a) This is a marriage based application and your wife's residential ties are based on yours.
b) You work and live oversees.
c)Your wife's travel pattern clearly shows that she was trying to avoid the 6 month break of continuous residency threshold.

 

[CAHope]

"Visiting is something you do for 1 or 2 months, not 5" is something else he said.

This is clearly IO’s personal view and misinterpretation. If IO was correct – USCIS would rewrite 6 months requirement.

If you really LIVE in US (have apt, lease, dl, credit cards, tax returns, paychecks etc, etc) – NOONE can determinate what is appropriate time for you to spend on trip/visit. Whenever it is one day or 180 days…

You’re fine as long as you follow requirement that trip must be less then 6 months.

When it comes to her denial – you should contact immediately a FEW good immigration lawyers – and get input from them.

Good luck.

 

[LolaLi]

This is clearly IO’s personal view and misinterpretation. If IO was correct – USCIS would rewrite 6 months requirement.

If you really LIVE in US (have apt, lease, dl, credit cards, tax returns, paychecks etc, etc) – NOONE can determinate what is appropriate time for you to spend on trip/visit. Whenever it is one day or 180 days…

You’re fine as long as you follow requirement that trip must be less then 6 months.

When it comes to her denial – you should contact immediately a FEW good immigration lawyers – and get input from them.

Good luck.

How is the IO wrong? And why are you sticking to the 6 months guideline? It is only a guideline not the law. IOs are given discretionary right to use ALL the facts to determine residency requirements. As stated earlier if you have a pattern of trips that indicate you are merely visiting - then the 6 months guideline does not work.

I think you need to re-read what the poster wrote. His wife filed based on the 3-year marriage to a US citizen and she was living with him (the US citizen) abroad for several years before filing for naturalization. Even in this case, unless work/living abroad was temporary in nature - meaning it is for a short duration of time - even having a home/lease, car, and bank accounts would not help towards naturalization. Naturalization law is pretty clear, and you must have both continuous and physical presence in the USA to qualify. The wife did not meet the 3 year continuous residency requirement and I am not sure based on what was given if she even met the 18 month requirement.

Also, she and her husband although married were not living together in the USA - he was abroad during her visits back - so she is ineligible to file under the 3-year clause. A person cannot demonstrate having ties to the US if their main tie and reason for applying early (the US citizen) is living abroad and they live with them abroad for a majority of the time.

I'd say don't waste your money on an appeal. You have two options now:
1.) Come back to the US and live here for another 18+ months straight and then have your wife apply. She will fulfill the required physical presence and continuous presence because she was married to you for 3 years and you can demonstrate at that time how the US is your home (primary abode).
2.) Or keep getting re-entry permits for her to preserve her permanent residency until you can leave the UK and move back to the US for good. Her clock will restart for naturalization and she can apply 2 years 9 months after.

 

[boatbod]

This is clearly IO’s personal view and misinterpretation. If IO was correct – USCIS would rewrite 6 months requirement.

Unfortunately you are the one that has misinterpreted the law. Of course you are not alone, as there are many people living abroad who erroneously believe that they can somehow skirt the residency laws by visiting the US every 5-6 months. Recently we've seen a significant rise in the number of denials for breaks in residence.

The fundamental issue is not the 6 month continuous residence breakpoint, but the issue of having demonstrated "intent" to live outside the US. Since 'determining' a person's intent is somewhat nebulous, the IOs are afforded a great deal of latitude in the decision making process.

Ultimately, remember that it is the applicant's responsibility to prove they are eligible for naturalization. It is not USCIS's job to prove that they are not.

 

[CAHope]

...And why are you sticking to the 6 months guideline? It is only a guideline not the law.

It is the LAW not just guideline.

US Law> US Code> TITLE 8 — ALIENS AND NATIONALITY> CHAPTER 12 — IMMIGRATION AND NATIONALITY> SUBCHAPTER III — NATIONALITY AND NATURALIZATION> PART II — NATIONALITY THROUGH NATURALIZATION> § 1427.


TITLE 8--ALIENS AND NATIONALITY

CHAPTER 12--IMMIGRATION AND NATIONALITY

SUBCHAPTER III--NATIONALITY AND NATURALIZATION

Part II--Nationality Through Naturalization

Sec. 1427. Requirements of naturalization


(a) Residence

No person, except as otherwise provided in this subchapter, shall be
naturalized unless such applicant, (1) immediately preceding the date of
filing his application for naturalization has resided continuously,
after being lawfully admitted for permanent residence, within the United
States for at least five years and during the five years immediately
preceding the date of filing his application has been physically present
therein for periods totaling at least half of that time, and who has
resided within the State or within the district of the Service in the
United States in which the applicant filed the application for at least
three months, (2) has resided continuously within the United States from
the date of the application up to the time of admission to citizenship,
and (3) during all the periods referred to in this subsection has been
and still is a person of good moral character, attached to the
principles of the Constitution of the United States, and well disposed
to the good order and happiness of the United States.

(b) Absences

Absence from the United States of more than six months but less than
one year during the period for which continuous residence is required
for admission to citizenship, immediately preceding the date of filing
the application for naturalization, or during the period between the
date of filing the application and the date of any hearing under section
1447(a) of this title, shall break the continuity of such residence,
unless the applicant shall establish to the satisfaction of the Attorney
General that he did not in fact abandon his residence in the United
States during such period. Absence from the United States for a continuous period of one year
or more during the period for which continuous residence is required for
admission to citizenship (whether preceding or subsequent to the filing
of the application for naturalization) shall break the continuity of
such residence, except that in the case of a person who has been
physically present and residing in the United States, after being
lawfully admitted for permanent residence, for an uninterrupted period
of at least one year, and who thereafter is employed by or under
contract with the Government of the United States or an American
institution of research recognized as such by the Attorney General, or
is employed by an American firm or corporation engaged in whole or in
part in the development of foreign trade and commerce of the United
States, or a subsidiary thereof more than 50 per centum of whose stock
is owned by an American firm or corporation, or is employed by a public
international organization of which the United States is a member by
treaty or statute and by which the alien was not employed until after
being lawfully admitted for permanent residence, no period of absence
from the United States shall break the continuity of residence if--

 

[CAHope]

IOs are given discretionary right to use ALL the facts to determine residency requirements.

IO is obligated to follow the law. Otherwise, we would end up being discriminated and on the mercy of them.

I see that I have missed the fact that she had a few long absences with short visits to US.
If she had only one trip of 5 months and if this was the reason for denial – as I was under impression – she would not have any problem – as she didn’t break the naturalization law.

 

[Bobsmyth]

One of the fundamental principals of USCIS adjudication is intent. If they determine that you have shown intent to abandon continuous residence by repeated trips that fall under the 6 month limit, then good luck in trying to use the written law to argue your point.

 

[CAHope]

Unfortunately you are the one that has misinterpreted the law. Of course you are not alone

My comment was more toward IO’s remark “"Visiting is something you do for 1 or 2 months, not 5"

If you believe that IO has the right to judge how many days we should spent on vacation or visit – you are wrong.

 

[CAHope]

One of the fundamental principals of USCIS adjudication is intent. If they determine that you have shown intent to abandon continuous residence by repeated trips that fall under the 6 month limit, then good luck in trying to use the written law to argue your point.

It is perfectly normal and OK if one has multiple trips – as long as they really have their primary residence here in US.

 

[Jackolantern]

It is perfectly normal and OK if one has multiple trips – as long as they really have their primary residence here in US.

But even if that is true, it is difficult to prove if there is a pattern of spending 10 months each year outside the US and one's spouse is spending the entire year living and working outside the US ... that clearly looks like the primary residence is outside the US.

 

[boatbod]

It is perfectly normal and OK if one has multiple trips – as long as they really have their primary residence here in US.

So how do your unequivocally determine the location of a person's primary residence? As far as I can see, a person who repeatedly makes a series of 5 month "visits" to the same foreign destination, interspersed with 1 month returns to the US is painting a very convincing picture that they are residing abroad. The burden of proof rests with the applicant to show that they qualify to naturalize, NOT with USCIS to show that they are ineligible.

 

[Pete777]

Thanks everyone for the replies (especially the first couple). That really clears everything up for me. Hindsight is 20/20, right?! Just wish I had applied for Citizenship when I was in NY for the first 5 years after first becoming a resident.... oh well!