Question abt Citizenship eligibility & time spent out of the US

W

wendogg

Registered Users (C)
I've read about the rules concerning continuous residency and when one becomes eligible to file for naturalization and frankly speaking sometimes it seems straight forward to understand, yet other times it doesnt, so I wanted to bring my particular situation to the forum for some light to be shed on it, so that I know when the best time to file is.

We received our GCs end of June 2007. Since then I've been in and out of the country a total of 428 days, on 4 separate trips, but none lasting more than 1 year. I've never applied for a re-entry permit, as my understanding at the time was that I didnt need one for as long as my trips would be under 1 year.

The length of my trips out of the US were: 41 days, 272 days, 90 days and finally 25 days. Since re-entering the US beginning of November 2008 I've not left the US for any length of time.

My wife also had one lengthy trip outside the US of 322 days, but since she re-entered in Sept 2008 she's not left the US for any length of time.

I understand that we can file upto 90 days before our 5 year period is over (June 2012), but considering the time we've spent outside of the country, I'd like to know if

1. Are we still eligible to file within 90days before our 5 year period ends

or

2. Add on the time we've spent outside the US to June 2012 before we file.
 
wendogg said:
I've read about the rules concerning continuous residency and when one becomes eligible to file for naturalization and frankly speaking sometimes it seems straight forward to understand, yet other times it doesnt, so I wanted to bring my particular situation to the forum for some light to be shed on it, so that I know when the best time to file is.

We received our GCs end of June 2007. Since then I've been in and out of the country a total of 428 days, on 4 separate trips, but none lasting more than 1 year. I've never applied for a re-entry permit, as my understanding at the time was that I didnt need one for as long as my trips would be under 1 year.

The length of my trips out of the US were: 41 days, 272 days, 90 days and finally 25 days. Since re-entering the US beginning of November 2008 I've not left the US for any length of time.

My wife also had one lengthy trip outside the US of 322 days, but since she re-entered in Sept 2008 she's not left the US for any length of time.

I understand that we can file upto 90 days before our 5 year period is over (June 2012), but considering the time we've spent outside of the country, I'd like to know if

1. Are we still eligible to file within 90days before our 5 year period ends

or

2. Add on the time we've spent outside the US to June 2012 before we file.
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If continuous residency is broken by a particular trip, the naturalization eligibility clock is reset to zero at the return from that trip.
So if you have a trip that broke continuous residency, you can't just "add on the time we've spent outside the US".

A trip abroad above 6 months but less than one year in duration is automatically presumed by law to have broken continuous residency, unless the applicant can overcome this presumption and prove to the IO at the interview that the trip in question did not break continuous residency and that the applicant retained close ties to the U.S. during that trip. For you the problematic trip is the 272 days one (and possibly the 90 days trip, especially if it was close in time to the 272 days trip), and for your wife it is the trip that lasted 322 days.

Deciding whether a given trip abroad (for you and for your wife) broke continuous residency is a fairly complicated matter and it depends on a bunch of information that you did not provide in your original post. Things that matter are: did you maintain an apartment/house in the U.S. during the trip; did you retain the U.S. job during the trip; what was your source of income during the trip; did you obtain employment abroad during the trip; etc.
 
baikal3 said:
If continuous residency is broken by a particular trip, the naturalization eligibility clock is reset to zero at the return from that trip.
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So any trip of between 6 months and a year resets the eligibility clock to zero essentially right ? So going by this information for a start, I'm looking at Nov 2013, since neither one of us have had any trip at all outside the US since Nov 2008. If we were to travel for less than 6 months between now and Nov 2013 though, then that wouldnt break residency right ?

To provide some more information to what you asked:

No, we didnt really maintain an apartment during those trips, as we were staying with family. The reason for the so many trips was basically slowly moving our lives from one country to another - to here that is. My trips were more frequent because of how much time I could get away from work to travel. By the time I took my last trip though, which was less than a month, we did have a place of our own.

My source of income during all these trips was my job, and yes I was employed abroad during the trips before moving to a job in the US.
 
wendogg said:
So any trip of between 6 months and a year resets the eligibility clock to zero essentially right ?
Click to expand...

No, that's not correct. A trip between 6 month and a year is presumed to break continuous residency but this presumption can be overcome if you can present convincing evidence to the IO that you did maintain close ties to the U.S. during that trip.
Basically, there is no definitive way to know for sure until and unless you submit an application and have an interview, but usually one can make a fairly good educated guess based on the details of a particular case.

So going by this information for a start, I'm looking at Nov 2013, since neither one of us have had any trip at all outside the US since Nov 2008. If we were to travel for less than 6 months between now and Nov 2013 though, then that wouldnt break residency right ?

To provide some more information to what you asked:

No, we didnt really maintain an apartment during those trips, as we were staying with family. The reason for the so many trips was basically slowly moving our lives from one country to another - to here that is. My trips were more frequent because of how much time I could get away from work to travel. By the time I took my last trip though, which was less than a month, we did have a place of our own.

My source of income during all these trips was my job, and yes I was employed abroad during the trips before moving to a job in the US.
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Was that job in the U.S.?

What about your wife? Did she have a job either in the U.S. or abroad?
Did yours and your wife's trip overlap?
After your 272 day trip did you resume the same U.S. job that you had before?

Did either you or your wife took job(s) abroad during your trips there?
 
I wish people here would share experience with continuous residence issue....I've searched a lot both on this forum and google and found nothing.
So my advice: take a chance....why not?
 
wendogg said:
So going by this information for a start, I'm looking at Nov 2013, since neither one of us have had any trip at all outside the US since Nov 2008
Click to expand...

Actually, if you are deemed to have broken continuous residence, you can apply 4 years and 1 day after you returned from the trip which broke the CR requirement. So it will be Nov 2012.

Whether you broke the continuous residence ... baikal's discussion is on the right track, and you can respond to his Qs.

[EDIT/ADD] You will count 4 years + 1 day from the trip which broke continuous residence (CR), not your last trip. If Nov 2008 was your last trip (25 day odd), then you need to go back and find the trip which was 272 days and count from there. However, do note that many back to back trips with a very small time in US might be considered a single trip for practical purposes.
 
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To answer baikal3's questions:

No, my job was not in the US, even though it was with a US company

No, my wife didnt have a job in the US. She did have a part-time job for a brief time after leaving the US on her single lengthy trip.

Our trips didnt overlap. When we initially came in, she said longer than I did. Then she left and rejoined me. I was in and out the US trying to take care of the things needed before relocating family, especially looking for a job to make relocation easier.

My 272 day trip was between me leaving the US then returning to the US to do interviews for work. To answer sanjoseaug20's question at this point - my 272 day trip was my second last one. I returned to the US at the end of that 272 day trip in June 2008. So, working on the 4+1 information you've provided, that would be around June 2012 for eligibility?!

Soon after taking interviews I secured a job, but it took a couple of months before final details were worked out and I could get started in the US. So between June 2008 and Nov 2008 I had a 90 day trip out of the US and finally a 25 day trip out of the US. Each time returning to my job out of the US, and on my last trip to quit my job outside the US and made our final move to the US. Since Nov 2008 we've been present in the US without a single trip outside.
 
The simplest option for you is Nov 2008 + 4 years + 1 day which would take you to apply sometimes in Nov 2012. That will raise very few questions since you have not traveled thereafter.

You can also try June 2012 but it depends on how close was your 272 day trip to the 90 day trip. If they were back to back, it is an issue. If you stayed for a few weeks (not 1-2), then you are on the positive side.
 
Sanjoseaug20 what happen when they deny your application ?, eventhougnt if you apeal and they deny again (336) , how long do you have to wait until you are able to apply again please (I didn't break my residence)
 
it depends ... they can deny and tell you when to file again, they can deny and say you can never file again, or they can deny without discussing this aspect. each case is different and depends on the case history as well as the denial note.
 
Julie_9 said:
Sanjoseaug20 what happen when they deny your application ?, eventhougnt if you apeal and they deny again (336) , how long do you have to wait until you are able to apply again please (I didn't break my residence)
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If and when you can reapply depends on the reason for denial and the specific facts involved. Sometimes you can reapply immediately. Sometimes it's years later, or never.

If you're not worried about denial for breaking continuous residence, what are you worried about?
 
well, they asked me about old leases, I went my old apartment and they were sold so they don't have any old archive, I asked then to write a letter saying that they said no, I don't see a reason for them not doing that... so i was thinking to make an affidavit and attached some bills from that time, and have my ex husband to sign, he also said no too (we didn't end our marriage in good terms ) so I'm really concern about that, it supposed to be a simple thing...I'm desperate... don't know what to do :( any suggestion please
 
Julie_9 said:
well, they asked me about old leases, I went my old apartment and they were sold so they don't have any old archive, I asked then to write a letter saying that they said no, I don't see a reason for them not doing that... so i was thinking to make an affidavit and attached some bills from that time, and have my ex husband to sign, he also said no too (we didn't end our marriage in good terms ) so I'm really concern about that, it supposed to be a simple thing...I'm desperate... don't know what to do :( any suggestion please
Click to expand...

So it looks like you are worried about issues of continuous residence.

If you're denied for breaking continuous residence (and there is no other reason damaging your eligibility), it's just a matter of waiting long enough so that the last long trip or series of trips is too old to affect your eligibility. 5 years after the end of that trip is definitely enough; sooner is also possible depending on which rule you're eligible to apply with.
 
Jackolantern said:
.

it's just a matter of waiting long enough so that the last long trip or series of trips is too old to affect your eligibility. .
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So, they only look at the 5 years previous to your submission date ? For instance, in my case, if I just decided to wait till Nov 2013, which is 5 years from when I stopped the frequent trips in and out of the country, do they bother about my trips before Nov 2008 ?

I'd really rather do it as soon as possible, but if waiting a couple more months just makes it that much more easier to process, then I can wait a couple more months.
 
"Usually" they look at only the past 5 years. However, on their discretion, they can look at anything. Also, you can file 90 days before the 5 year date. CIS gives this benefit to everyone who has met permanent residence requirements to file early so that the processing can progress while the 5th year completes. You should be able to take the same benefit without inviting questions (under ideal circumstances).

However, as I mentioned earlier, you might be able to use the 4 year + 1 day rule also.

Options are (from your last long trip "without an adjacent short trip thereafter")
A) 4 year + 1 day ... in this you are acknowledging the gap in residency openly and depending on the IO either prompting a discussion, or putting it behind you
B) 5 years minus 90 days ... obviously least risky. By the time you get to interview, it will be close to 5 years, if not more.
C) 5 years plus ... excessive and the only reason you will go for it is if you want to invite zero discussion on your absence, some people have issues like foreign employment they don't want discussed and it probably works for them.
 
The regulation on this topic is 8 CFR 316.5 in general.

For those with 6month or longer trips look at 316.5(c)(1)(i)and (ii).

The break in (i) might be overcome by evidence described in (i)(A-D) [the tings described in these posts don't look so good for that option].

The remedy in (ii) applies to the breaks in both (i) and (ii).

It is easier to stop globe-hopping and just wait it out.

If you want to fight it out with USCIS, hire an honest and competent lawyer to see if they think you have a chance.
 
BigJoe5 said:
The regulation on this topic is 8 CFR 316.5 in general.

For those with 6month or longer trips look at 316.5(c)(1)(i)and (ii).

The break in (i) might be overcome by evidence described in (i)(A-D) [the tings described in these posts don't look so good for that option].

The remedy in (ii) applies to the breaks in both (i) and (ii).

It is easier to stop globe-hopping and just wait it out.

If you want to fight it out with USCIS, hire an honest and competent lawyer to see if they think you have a chance.
Click to expand...

Yeah - I agree with you on just waiting it out. Like I said earlier on, I can wait a couple of months maybe even an extra year to have at least 5 straight years of continuous residency here, than trying to make sense of the legal language in the document above, or justifying all the short absences during the first year.
 
wendogg said:
Yeah - I agree with you on just waiting it out. Like I said earlier on, I can wait a couple of months maybe even an extra year to have at least 5 straight years of continuous residency here, than trying to make sense of the legal language in the document above, or justifying all the short absences during the first year.
Click to expand...

The basic remedy in the regulation that you did NOT look up and read is the wait 4 yrs and 1 day from the return from the last long trip.
 
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