Presence in state at time of filing N400

M

MainBheeCitizen

Registered Users (C)
Hello all,

Please provide your interpretation of Clause 3 the INS Act 316:

INA: ACT 316 - REQUIERMENTS AS TO RESIDENCE, GOOD MORAL CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE CONSTITUTION, AND FAVORABLE DISPOSITION TO THE UNITED STATES

a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant:

3. 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

Does this mean that one should be PHYSICALLY living in the state of filing for the 3 months IMMEDIATELY prior to the application? Is it OK to not actually be in that state (due to travel abroad) at the time the application is mailed to INS as long as one has been a resident of that state for a long time (10 years plus, Drivers license, car registration, tax filing done in state of filing throughout).

Thank you again for your inputs - wish you and your families a Merry Christmas and a Happy New Year!
 
Thank you JoeF for your insights.

Here's the specific situation, please, for your comments.

Eligible to file for citizenship in last week of 2004.

In 2004, out of US (and state) from Jan thru March.

Plan to stay in US in April & May.

Return to US again around September and October. During this timeframe, complete physical presence requirements of 2.5 years in US.

File for Citizenship in October 2004 (as per 90 day rule allowing one to file earlier).

Continuous presence - out of the US for more than 6 months (less than a year) only once (received paychecks in the US during that time) in the time between getting PR and filing for citizenship.

File Fed tax returns (always as US resident) from state of filing throughout for all 5 years since getting PR.

Do not own house. Car always registered in the state of filing.
Do NOT maintain apartment in state during time out of the country (for economic reasons).

Does this cause a problem from the state residency point of view?
Or any other kind of problem.

Thank you all for your inputs - wish you a safe Memorial Day weekend!!!
 
Are your travels out of the US work related? If so, is your employer a US company (established in the US, not just a foreign company with a subsidiary in the US).

I think that you're cutting it close, but Joef would be better able to answer your question. My belief is that BCIS may not give the naturalization applicant the benefit of the doubt if s/he just comes back every 5-6 months to "maintain" the gc. Is there anyway that you can stay in the US most of the time between now and when you apply (and get approval) for your naturalization?
 
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Thank you Gabby2001 for your response - much appreciated!

The time outside the country is indeed work related. I own a small company (registered in the state of filing). It has a business partnership with a foreign company to which some of the work is farmed out. This necessitates the foreign travel.

More background:

2000 Dec - Obtained GC

2001 - in US until April, out of US thru June end.
back in US for all of August, then out of country again
During this time continue to receive paychecks in US from
own company

2002 out of US until March. Back in APril. In the US since then.

2003 only out of US for a month.

2004 Out of US from Jan thru March. Back in US in April thru May
Out of US June thru November
Back in US in December.

2005 Out of US from Jan thru March. Back in US in April thru May
Out from June thru August. back in September - that's
when file for Citizenship.

In the previous post, had incorrectly mentioned 2004 - am eligible to file for citizenship in last quarter of 2005 (not 2004).

Company and personal taxes always paid in state of filing. Only thing is, apartment not maintained in my name while I am out of the US - don't see why this outgo on personal finances should be done when no benefit (of staying) is derived.

Thanks again for your inputs.
 
Joef,

Sorry, there was a typo in my original posting and I have since corrected it. My understanding is that BCIS would not give the benefit of the doubt to the naturalization applicant, if s/he only comes back to the US every 5-6 months for a short trip simply to "maintain" the gc.

Also, although 2.5years out of 5 years is the minimum requirement for residecency requirement, I still think that cutting it close is not necessarily a prudent move.

What are your thoughts?
 
MainBheeCitizen,

I agree with JoeF in that you should maintain your apartment when you're abroad when you're closer to applying for your naturalization.
 
Hi Joef,

Thanks for the reply. I agree with you in that any trips less than 6 months would typically not cause any problems.

Don't the naturalization interviewers have the authority to cancel the applicant's green card if they feel that the applicant has abandoned their permanent residency? I am not certain about this, but an immigration attorney with whom I had a consultation told me that it happened to one of his clients. The interviewer apparently cited residency as the reason for canceling the green card. However, I suppose that was probably more of the exception than the norm.
 
Appreciate your inputs Gabby2001 and JoeF.

Can you please give me your take on the situation just prior to application for me and my wife:

In the years prior to applying for citizenship,
For myself:

2001: Totally about 4.5 months stay in the US. rest out of US.
2 trips one of 4 months duration and the other of about
6.5 months (paychecks received in US from own company).

2002: Totally about 9 months stay in the US. Out of US for 3
months (part of 6.5 month trip undertaken in 2001).

2003: Totally about 11 months stay in the US. Out of US once:
1 trip of 1 month duration

2004: Totally about 3 months stay in the US. rest out of US.
2 trips one of 3 months duration and the other of about
4.5 months.

2005: Totally about 3.5 months stay in the US. rest out of US.
2 trips one of 4.5 months duration and the other of about
4 months.

This gives physical presence of 31 months at time of application.

For my spouse:

2001: Totally about 3.5 months stay in the US. rest out of US.
1 trip of 11.5 months duration (paychecks received in US
from own company).

2002: Totally about 9 months stay in the US. Out of US for 3
months (part of 11.5 trip undertaken in 2001).

2003: Totally about 11 months stay in the US. Out of US once:
1 trip of 1 month duration

2004: Totally about 3 months stay in the US. rest out of US.
2 trips one of 3 months duration and the other of about
4.5 months.

2005: Totally about 3.5 months stay in the US. rest out of US.
2 trips one of 4.5 months duration and the other of about
4 months.

This gives physical presence of 30 months at time of application.

DO you think this will be ground for BCIS suspecting abandonment of GC? I agree that it is worth it to keep an apartment in my name prior to applying for citizenship.

Again, many thanks!
 
My take on this is that you might run into issues with the trips that were 6 months or longer. You need to be able to convince the interviewer that you did not intend to abandon your permanent residency, and the preponderance of proof lies upon you.

It might be worthwhile to consult with an immigration attorney when it comes time to apply for your naturalization.
 
MainB,

You got GC in Dec, 2000, you can file N-400 in the last week of 2004? It's only 4 years. Don't you need 4 years and 9 months? Thanks.
 
Jimmy,

If you read the thread carefully, you would notice that Main corrected himself and said that he would not be eligible to apply for naturalization till the last quarter of 2005 (instead of 2004).
 
May I have your advice based on revised scenario ...

Hello folks – may I please have your advice. I plan to file for the citizenship around October 2005. I did alter my residency plans based on advice that I received from several helpful members on this board earlier.

Can you please give me your take on the situation just prior to application for me and my wife after the revised scenario:

In the years prior to applying for citizenship,
For myself:

2001: Totally about 4.5 months stay in the US. rest out of US.
2 trips one of 4 months duration and the other of about
6.5 months (paychecks received in US from own company).

2002: Totally about 9 months stay in the US.
Out of US for 3 months (part of 6.5 month trip undertaken in 2001).

2003: Totally about 10.5 months stay in the US.
1 trip of 1 month duration
1 trip of 6 weeks that overlaps into the first trip mentioned in 2004.

2004: Totally about 10.5 months stay in the US. Out of US for 1.5 months
1 trip of about 6 weeks duration (continuation of last trip of 2003).
3 trips of about 8 days duration each.
1 trip of 2 weeks duration.

2005: Totally about 5.5 months stay in the US (up to June 2005).
Rest out of US.
1 trip of 8 days.
2nd trip of 4 months (leave June 2005 - return in October 2005).
FILE CITIZENSHIP APPLICATION based on 90 day rule.
Plan to be out of US after that – returning at time of FP and interview

This gives physical presence of 40 months at time of application. At all times, pay taxes in US, draw salary from own, US based company. Do not maintain apartment after leaving in June 2005.

For my spouse:

2001: Totally about 3.5 months stay in the US. rest out of US.
1 trip of 11.5 months duration (paychecks received in US
from own company).

2002: Totally about 9 months stay in the US.
Out of US for 3 months (part of 11.5 trip undertaken in 2001).

2003: Totally about 11 months stay in the US.
1 trip of 1 month duration.
2nd trip of 4 months duration (continues into 1st trip in 2004)

2004: Totally about 4 months stay in the US. rest out of US.
1 trip of 4 months duration (same as last trip of 2003). Followed by
stay for 2.5 months
1 trip of 4 months duration. Followed by stay for 1.5 months.
1 trip of 3 months duration (continues into 1st trip in 2005).

2005: Totally about 4 months stay in the US. rest out of US.
1 trip of 3 months duration (continued from last trip in 2004).
Followed by stay for 3.5 months.
2nd trip of 4 months (leave June 2005 - return in October 2005).
FILE CITIZENSHIP APPLICATION based on 90 day rule.
Plan to be out of US after that – returning at time of FP and interview

This gives physical presence of 30 months at time of application for my spouse.

Thanks to all of you for your inputs – TRULY appreciate your help!
 
MBC:
What is missing in discussion is that "30 months PP and no trips > 6 mo" requirements should hold true for not only at time of filing but upto interview day(ideally upto oath day!!). I have seen/heard in some cases that IV officer counts this at time of interview.
You & your wife fulfills this requirement at time if filing and, let's assume, your interview comes 1 year after filing and in this year time you only stay in US for 10 months than you will end up screwing 30 mo PP requirements since you are cutting so close (esp your wife!!) even at the time of filing. IV officer can count backward five years from the day of interview to check for these requirements. So be careful about this issue, besides all others!!!
My 2 cents :)
 
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