so disappointed

naina123

Registered Users (C)
#21
my dates and when can i reapply

sanjose and bobsmyth ok I am- need your advise

so confused with the calculations and how I should be planning this

the dates outside US as mentioned in my denial letter which add to 992days outside US and mentioned as reason for denial.
05/27/2005- 05/30/2005 2days
07/02/2005 - 11/12/2005 132 days
04/12/2006 - 05/07/2006 24days
8/18/2006 - 09/04/2006 16days
10/20/2006 - 10/23/2006 2 days
12/21/2006 - 07/27/2007 217 days
10/11/2007 - 12/10/2007 59days
05/23/2008 - 06/16/2008 23days
07/02/2008 07/07/2008 4days
09/25/2008 06/01/2009 248days
06/12/2009 03/05/2010 265 days

What is the earliest now I can apply ( in addition 70 days out since june2010 and returning end of month to the US)
 

dms1

Registered Users (C)
#22
my lawyer had mentioned you could take a chance so I took the chance.
If that really is the advice your lawyer gave you then I would consider reporting them. The physical presence requirement is very clear cut and your lawyer not knowing that is inexcusable.
 

madh4

Registered Users (C)
#23
sanjose and bobsmyth ok I am- need your advise

so confused with the calculations and how I should be planning this

the dates outside US as mentioned in my denial letter which add to 992days outside US and mentioned as reason for denial.
05/27/2005- 05/30/2005 2days
07/02/2005 - 11/12/2005 132 days
04/12/2006 - 05/07/2006 24days
8/18/2006 - 09/04/2006 16days
10/20/2006 - 10/23/2006 2 days
12/21/2006 - 07/27/2007 217 days
10/11/2007 - 12/10/2007 59days
05/23/2008 - 06/16/2008 23days
07/02/2008 07/07/2008 4days
09/25/2008 06/01/2009 248days
06/12/2009 03/05/2010 265 days

What is the earliest now I can apply ( in addition 70 days out since june2010 and returning end of month to the US)
I did reverse maths below. Number of days you were in US
11/13/2005 - 04/11/2006 = 18+31+31+28+31+11 = 150
05/08/2006 - 8/17/2006 = 24+30+31+17 = 102
09/05/2006 - 10/19/2006 = 26+19 = 45
10/24/2006 - 12/20/2006 = 8+30+20 = 58
07/08/2007 - 5/22/2008 = 21+31+29+31+30+22 = 164
06/17/2008 - 07/01/2008 = 14+1 = 15
07/08/2008 - 09/24/2008 = 24+31+24 = 79
06/02/2009 - 06/11/2009 = 10 = 10
03/06/2010 - 06/20/2010* = 26+30+31+20 = 107
* assumed TOTAL = 805
If you return by 08/31/2010 you should stay in USA for at least for 108 days more to get 913 days. It is tricky you do not have that many days before 11/12/2010.You can add only 30+31+12 = 73 days till 11/12/2010. So as on 11/12/2010 you would have stayed in US for 878 days in last 5 years.

Are you getting my point . After 11/13/2010 even though you stay in US one day gets knocked out from 11/13/2005 the time you were in US. You can build up another 24days in 04/12/2011 to 05/09/2011. Even then you are short. You could make up only after 8/18/2011 till 9/04/2011. Theoretically if you stay in US without break till that date 09/04/2011 you would have physical presence.

Another interesting point for discussion: what would USCIS consider , the physical presence as on date of your application or date of your interview or date of Oath.
 
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mmlo

Registered Users (C)
#24
Another interesting point for discussion: what would USCIS consider , the physical presence as on date of your application or date of your interview or date of Oath.
Physical presence after your submitted application will not be counted. I went through this with my N400 application, where a supervisor had to be called. If my dates after the application was accepted were to have been counted, I wouldn't have had enough physical presence -- but this isn't the case.
 

seadull

Registered Users (C)
#25
Physical presence after your submitted application will not be counted. I went through this with my N400 application, where a supervisor had to be called. If my dates after the application was accepted were to have been counted, I wouldn't have had enough physical presence -- but this isn't the case.
Were you applying 90 days before your 5 year anniversary? If yes, then you are lucky to have that IO. Because technically, the last 90 days still count towards 5 years during which continuous residency is calculated.
 

Bobsmyth

Volunteer Moderator
#26
bobsmyth - my lawyer had mentioned you could take a chance so I took the chance. definitely regret it badly when it was a simple case of waiting 3 more months. no I do not have any sort of criminal proceedings or any tickets whatsoever. what is your advise on the corrective steps I should take and the earliest at which I should apply for citizenship. I have made up for the missing 96days already after I applied but have been advised on the forum to wait till I can show a better number than required.

Also, most important the fact that I mention I work for a global company and have to make many work related trips- Is that a problem? Do I need to now change my job ?
There are two issues in your case: lack of physical presence and presumption of break in continuous residency. Before you can reapply, you should have at least 913 days in the US in the 5 years before submitting application. That means calculating your physical presence in the US before you apply.
Secondly, you must show sufficient US residency ties for the entire past 5 year period up until your oath. That means any trips over 6 months will presume you broke continuous residency, unless you can prove otherwise. Not having any family in US, working overseas without a N-470 and not keeping a primary abode in the US all go against you in proving continuous residency. Do not apply again before you have met both physical presence and continuous residency requirements. Most importantly, fire your lawyer. Your lawyer should never have told you to take a chance when it was clear you weren't eligible in the first place.
 

Bobsmyth

Volunteer Moderator
#27
Because technically, the last 90 days still count towards 5 years during which continuous residency is calculated.
The issue mmlo brought up was that of physical presence, not continuous residency. Physical presence must be only until you apply, whereas continuous residency must be met up until oath date.
 

Bobsmyth

Volunteer Moderator
#29
I did reverse maths below. Number of days you were in US
11/13/2005 - 04/11/2006 = 18+31+31+28+31+11 = 150
05/08/2006 - 8/17/2006 = 24+30+31+17 = 102
09/05/2006 - 10/19/2006 = 26+19 = 45
10/24/2006 - 12/20/2006 = 8+30+20 = 58
07/08/2007 - 5/22/2008 = 21+31+29+31+30+22 = 164
06/17/2008 - 07/01/2008 = 14+1 = 15
07/08/2008 - 09/24/2008 = 24+31+24 = 79
06/02/2009 - 06/11/2009 = 10 = 10
03/06/2010 - 06/20/2010* = 26+30+31+20 = 107
* assumed TOTAL = 805
Your calculations table left out period 7/28/2007-10/10/2007, although your assumed total total of 805 is correct.

Theoretically if you stay in US without break till that date 09/04/2011 you would have physical presence.
Actually it would be earlier around 8/28/2011, since by 9/04/2011 OP will have 923 days of physical presence in the US assuming he/she returns 8/31/2010 and remains in US.

However, since OP's continuous residency is also in question, he/she needs to reestablish it before they can apply.
 

madh4

Registered Users (C)
#31
Sorry typing error of dates corrected as below . Thanks bobsmyth

I did reverse maths below. Number of days you were in US
11/13/2005 - 04/11/2006 = 18+31+31+28+31+11 = 150
05/08/2006 - 8/17/2006 = 24+30+31+17 = 102
09/05/2006 - 10/19/2006 = 26+19 = 45
10/24/2006 - 12/20/2006 = 8+30+20 = 58
07/28/2007 - 10/10/2007 = 4+31+30+10 = 75
12/11/2007 - 5/22/2008 = 21+31+29+31+30+22 = 164
06/17/2008 - 07/01/2008 = 14+1 = 15
07/08/2008 - 09/24/2008 = 24+31+24 = 79
06/02/2009 - 06/11/2009 = 10 = 10
03/06/2010 - 06/20/2010* = 26+30+31+20 = 107
* assumed TOTAL = 805
If you return by 08/31/2010 you should stay in USA for at least for 108 days more to get 913 days. It is tricky you do not have that many days before 11/12/2010.You can add only 30+31+12 = 73 days till 11/12/2010. So as on 11/12/2010 you would have stayed in US for 878 days in last 5 years.

Are you getting my point . After 11/13/2010 even though you stay in US one day gets knocked out from 11/13/2005 the time you were in US. You can build up another 24days in 04/12/2011 to 05/09/2011. Even then you are short. You could make up only after 8/18/2011 till 9/04/2011. Theoretically if you stay in US without break till that date 09/04/2011 you would have physical presence.

Another interesting point for discussion: what would USCIS consider , the physical presence as on date of your application or date of your interview or date of Oath.
 

sanjoseaug20

Registered Users (C)
#32
09/25/2008 06/01/2009 248days
06/12/2009 03/05/2010 265 days
Bob and Madh have evaluated the physical presence. Your other problem is continuous residence. The above gives the appearance that you lived abroad starting Sep 25, 2008 until March 5, 2010 (hey both birthdays in family) and returned to US only to beat the 6 month absence clock. An IO may make a determination that this was just one single trip of over 500 days. If they make this determination, and considering your current stay abroad, you can likely file 4 years after your return, and that too if you predominantly live in US.
 

naina123

Registered Users (C)
#33
bobsmyth,math and sanjose

Thankyou so much for the responses. Well a lesson learnt the very hard way. I wish I would have been told by my lawyer of the implications being so severe and I could have waited a few more months to apply as against now waiting for almost a year and being under risk.

As for the continous residency, the denial letter does not mention this as a problem. Though before explaining the reason for physical presence they have mentioned a sequence of events as follows.

On the day you started with the oath. The application was discussed and when the IO asked why there were more than 6 month trips you mentioned these were business trips and produced a letter from your employer. Your application mentions trips.......(rest is what I mentioned earlier) and they mention the reason to decline as physical presence.

So, where they just mentioning the sequence of events or is there any other meaning for highlighting what was discussed?(my question is w.r.t continous residency)

-Going forward if my company applies for n470 ( this period will not be counted as physical presence right? I believe this is only for maintaining continous residence.)
 

Bobsmyth

Volunteer Moderator
#34
bobsmyth,math and sanjose

Thankyou so much for the responses. Well a lesson learnt the very hard way. I wish I would have been told by my lawyer of the implications being so severe and I could have waited a few more months to apply as against now waiting for almost a year and being under risk.

As for the continous residency, the denial letter does not mention this as a problem. Though before explaining the reason for physical presence they have mentioned a sequence of events as follows.

On the day you started with the oath. The application was discussed and when the IO asked why there were more than 6 month trips you mentioned these were business trips and produced a letter from your employer. Your application mentions trips.......(rest is what I mentioned earlier) and they mention the reason to decline as physical presence.

So, where they just mentioning the sequence of events or is there any other meaning for highlighting what was discussed?(my question is w.r.t continous residency)

-Going forward if my company applies for n470 ( this period will not be counted as physical presence right? I believe this is only for maintaining continous residence.)
Just because the denial letter doesn't mention continuous presence doesn't mean it wasn't an issue.

The N-470 only covers continuous residency. It only covers physical presence if you are in US military. In your case, you need to concentrate on staying in US if you are serious about about obtaining US residency.
 

naina123

Registered Users (C)
#35
n470

the form mentions
"You should use Form N-470 if you are a lawful permanent resident (permanent resident) who will be absent from the United States for more than one year due to qualifying employment and you want to preserve your residence for naturalization purposes."

- does this mean if my employer ever wants to send me for less than a year they cannot file form n470?
 

Bobsmyth

Volunteer Moderator
#37
- does this mean if my employer ever wants to send me for less than a year they cannot file form n470?
No, N-470 can be filed for absences less than 1 year also. The N-470 instructions mention trips over 1 year since they automatically break continuous residency, whereas trips between 6-12 months only presume break in continuous residency (unless you can prove otherwise).

However, in your case having employer file N-470 is pointless if you don't have enough physical presence in the US. Also you must have had at least 1 year of continuous physical presence in the US since obtaining your GC in order to qualify for N-470.
 

naina123

Registered Users (C)
#38
dates

Sorry typing error of dates corrected as below . Thanks bobsmyth
the return date this trip was on 04june2010. Hence as per the USCIS calculation only on 31-dec-2011 I will be eligible.

i.e days outside calculated will be less than 900 only on 31-dec-2011.
207
59
23
4
248
265
90 (from jun42010 till end of Aug2010 and assuming no more trips till dec2011)

Total comes to 896days on Dec-31-2011.

Please correct me if I am wrong.
 

Bobsmyth

Volunteer Moderator
#39
the return date this trip was on 04june2010. Hence as per the USCIS calculation only on 31-dec-2011 I will be eligible.

i.e days outside calculated will be less than 900 only on 31-dec-2011.
207
59
23
4
248
265
90 (from jun42010 till end of Aug2010 and assuming no more trips till dec2011)

Total comes to 896days on Dec-31-2011.

Please correct me if I am wrong.
It depends if USCIS will interpret 30 months to be 900 days, or half of 5 years to be 913 days. Technically, you will have sufficient physical presence (913 days) by about August 28 2011, and will have 913 days outside of US. USCIS may try to argue that 913 days outside US is more than 30 months and hence exceeds the limit based on interpretation of 30 months =900 days.
However, even if you have meet physical presence by that time, your continuous residency will still be an issue due to extended trips of more than 6 months in statutory period due to working overseas without N-470,not having immediate family in US, and not maintaining primary abode in US during that time. Obtaining a N-470 now will only cover future trips, not past ones. Your safest bet is to apply 4 year + 1 year after your last return of over 6 months which would bring you to 3/6/2014.
 

naina123

Registered Users (C)
#40
It depends if USCIS will interpret 30 months to be 900 days, or half of 5 years to be 913 days. Technically, you will have sufficient physical presence (913 days) by about August 28 2011, and will have 913 days outside of US. USCIS may try to argue that 913 days outside US is more than 30 months and hence exceeds the limit based on interpretation of 30 months =900 days.
However, even if you have meet physical presence by that time, your continuous residency will still be an issue due to extended trips of more than 6 months in statutory period due to working overseas without N-470,not having immediate family in US, and not maintaining primary abode in US during that time. Obtaining a N-470 now will only cover future trips, not past ones. Your safest bet is to apply 4 year + 1 year after your last return of over 6 months which would bring you to 3/6/2014.
Bobsmyth,

Thank you again for explaining. Since there is so much confusion, should I get an infopass and get a clarification from the IO as to when I can reapply or will that prove detrimental. I read in the USCIS FAQ that they are supposed to give me a date by which I can reapply on the denial letter.
 
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