URGENT HELP! Appeal VS ReFile

[John Sreedhar]

novi400:

As a permamnet resident, you have to stay in USA most of the time. Whatever you do overseas, it has to be temporary in nature.

You said the reason for your overseas stay is to take care of your grandpa and uncle. To you it may appear right thing to do, but for officer, humanitarian side do not matter. You should have arranged your relatives to look after them till you got your citizenship.

It's huge mistake that you said you worked overseas for living. At the time of interview, you should have produced documentation to prove that the work you did overseas is for USA based company, the work is temporary in nature, the stay is temporary in nature and the company chose you to do that work. Now how can you produce such evidence if you appeal. The assignment letters has to be dated to reflect the old dates. Do not even think about producing false documentation.

When one brokes continuous residence rule, the clock resets from that day to 4 years and one month. You have not broken any rule and you need not wait for that long. You can't reapply shortly also, because the same question arises at the time of interview that why you are absent for such long period, because they look for 5 year's history.

You have these choices:
1) Appeal and try to produce evidence. See if luck is on your side.
2) Wait a year or two and reapply.
3) Keep on applying once a year. You need not to wait for 4 years and one month. But the cleaner the record in the last 5 years, more the chance is. Try your luck. Every officer may not be same. The thing is you have to pay fee everytime.

If I am not wrong, in N-400 application, nowhere one mentions how many times one applied for citizenship before or if it denied before.

 

[novi400]

novi400:

As a permamnet resident, you have to stay in USA most of the time. Whatever you do overseas, it has to be temporary in nature.

You said the reason for your overseas stay is to take care of your grandpa and uncle. To you it may appear right thing to do, but for officer, humanitarian side do not matter. You should have arranged your relatives to look after them till you got your citizenship.

It's huge mistake that you said you worked overseas for living. At the time of interview, you should have produced documentation to prove that the work you did overseas is for USA based company, the work is temporary in nature, the stay is temporary in nature and the company chose you to do that work. Now how can you produce such evidence if you appeal. The assignment letters has to be dated to reflect the old dates. Do not even think about producing false documentation.

When one brokes continuous residence rule, the clock resets from that day to 4 years and one month. You have not broken any rule and you need not wait for that long. You can't reapply shortly also, because the same question arises at the time of interview that why you are absent for such long period, because they look for 5 year's history.

You have these choices:
1) Appeal and try to produce evidence. See if luck is on your side.
2) Wait a year or two and reapply.
3) Keep on applying once a year. You need not to wait for 4 years and one month. But the cleaner the record in the last 5 years, more the chance is. Try your luck. Every officer may not be same. The thing is you have to pay fee everytime.

If I am not wrong, in N-400 application, nowhere one mentions how many times one applied for citizenship before or if it denied before.

Wow, I really appreciate your help and your precise reply. Right now, I think I may reFile in later years instead. Since the company that I worked for is a local Chinese Company, not sub-sid of any US company, what I think they are saying is the point "LACK of continuous residence". So reFile maybe a better choice. John Sreedhar, do you think I should also write them a mail explaining the facts that I was taking care of my relatives but I will just choose to reFile instead so as to give them an impression that I still have a STRONG intent to stay here and obtain the citizenship?

Sidestory: it sucks that I paid $150 consultation fee to an attorney (sucker) 2 weeks ago and NOT REALLY helping me out in any means and only responsed to me TODAY! (2 days before the appeal deadline), sigh...

 

[boatbod]

...do you think I should also write them a mail explaining the facts that I was taking care of my relatives but I will just choose to reFile instead so as to give them an impression that I still have a STRONG intent to stay here and obtain the citizenship?

Repeatedly filing N-400s will not demonstrate strong intent to reside in the US, any more than repeatedly entering the US for a brief visit demonstrates that you reside here vs abroad. You need to produce hard evidence that you did not abandon your residency when you took up foreign employment. In absence of that, I see no reason why your case would be approved any sooner than 4yr+1day from the date your returned. Arguing that you didn't break residency because you were not absent for more than 180 days is unlikely to be successful because you clearly only returned to the US for the specific purpose of dodging the 6 month limit.

Perhaps you need a better lawyer, or maybe you should just save your money.

 

[zap]

Cfr 316.5

Novi400,

If you look carefully on CFR 316.2, continuous residence is defined in CFR 316.5. under which only four conditions lead to disruption of continuity of residence.

(c) Disruption of continuity of residence


(1) Absence from the United States .


(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under Sec. 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not dis rupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)


(A) The applicant did not terminate his or her employment in the United States;


(B) The applicant's immediate family remained in the United States;


(C) The applicant retained full access to his or her United States abode; or


(D) The applicant did not obtain employment while abroad.


(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with Sec. 316.5(d) , absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under Sec. 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)


(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident . An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647)


(3) Removal and return . Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312 )


(4) Readmission after a deferred inspection or exclusion proceeding . An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.


I don't see you are in violation of any of the above. If you have taken a trip of over 6 months but less than one year, then I can understand why they denied your application. Otherwise it could be just an administrative mishandling.
Disclaimer: I am not a lawyer.

 

[Anami]

This is informative. At this point, I think it depends a lot on your luck of how understanding your IO officer is. Another valid point before the judge or for an appeal is that the guide to naturalization does not talk about continuous residence being broken for trips less than 6 months. I think a lot of it is (sometimes incorrect) interpretation by IO. I would again recommend that you appeal since there is no harm and if you do not appeal then till 4 year and 1 day they might use the same reason to deny you again.

Novi400,

If you look carefully on CFR 316.2, continuous residence is defined in CFR 316.5. under which only four conditions lead to disruption of continuity of residence.

(c) Disruption of continuity of residence


(1) Absence from the United States .


(i) For continuous periods of between six (6) months and one (1) year. Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under Sec. 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. This finding remains valid even if the applicant did not apply for or otherwise request a nonresident classification for tax purposes, did not document an abandonment of lawful permanent resident status, and is still considered a lawful permanent resident under immigration laws. The types of documentation which may establish that the applicant did not dis rupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)


(A) The applicant did not terminate his or her employment in the United States;


(B) The applicant's immediate family remained in the United States;


(C) The applicant retained full access to his or her United States abode; or


(D) The applicant did not obtain employment while abroad.


(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with Sec. 316.5(d) , absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under Sec. 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period may file an application for naturalization four years and one day following the date of the applicant's return to the United States to resume permanent residence. An applicant described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)


(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident . An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647)


(3) Removal and return . Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312 )


(4) Readmission after a deferred inspection or exclusion proceeding . An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.


I don't see you are in violation of any of the above. If you have taken a trip of over 6 months but less than one year, then I can understand why they denied your application. Otherwise it could be just an administrative mishandling.
Disclaimer: I am not a lawyer.

 

[talkative]

Here is an interesting data point:

Dhillon v. Regents of the Univ. of California (pg 990)
"As absence of six months or less is not included in the statute, it does not disrupt the continuity of residence."

 

[boatbod]

Here is an interesting data point:

Dhillon v. Regents of the Univ. of California (pg 990)
"As absence of six months or less is not included in the statute, it does not disrupt the continuity of residence."

...but only if you are a judge. As the article states, USCIS (INS) are bound by their own operational instructions and methods of calculating continuous residence. Practically speaking, unless you're going to invest $$$ fighting this in court, you're stuck with the USCIS interpretation.

 

[takadigi]

So what should I do now? I got 3 more days to appeal before the deadline (30 days since I received the denial letter)! I also asked a couple of attorny and they are not positive for my case saying the chance is not good for the appeal and ask me to ReFile next year instead ...

So, you think we general people at this forum will know more than attorneys? That would be way too naive for you to think. The whole mess you are in today is because you just *assumed* and *thought*, per your own admission, during the whole course of your transits between US and China. If you had consulted an attorney to start with, your case would probably be a lot clearer and cleaner.

Anyways, if I were you, I wouldn't be wasting any time posting on internet forums and would immediately seek legal help from a qualified attorney and would go per his/her advice.

Yes, we are smart people but we are not lawyers and certainly know less than them.

 

[equate]

Anyways, if I were you, I wouldn't be wasting any time posting on internet forums and would immediately seek legal help from a qualified attorney and would go per his/her advice.

From his previous posts, he already did. He is $130 lighter in the wallet and none the wiser for it.

To be fair, I don't think it's worth it anyway. The appeal through a lawyer will cost him a minimum of several thousand dollars (assuming the case goes to court) and there is no guarantee he can win.

 

[valiko]

So, you think we general people at this forum will know more than attorneys? That would be way too naive for you to think. The whole mess you are in today is because you just *assumed* and *thought*, per your own admission, during the whole course of your transits between US and China. If you had consulted an attorney to start with, your case would probably be a lot clearer and cleaner.

Anyways, if I were you, I wouldn't be wasting any time posting on internet forums and would immediately seek legal help from a qualified attorney and would go per his/her advice.

Yes, we are smart people but we are not lawyers and certainly know less than them.

It's not a matter of knowledge, it's a matter of determination and genuine interest in the outcome of the case. There are very few attorneys that will take your case to heart, so to speak. Yes -- we have more luck and ability to get our cases resolved. Attorney is a tool, just like a hammer, if you don't know how to use it you will hit your own fingers instead of the nail. If you're seeking your wallet to get lighter -- by all means go to a lawyer. If you want to get your issue solved -- start doing it yourself.

 

[Jackolantern]

A *single* trip of less than 6 months will not break continuous residence for naturalization, but *multiple* long trips of less than 6 months each, interspersed with very short stays in the US in probably will break it.

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2

Continuous Residence Example


The applicant filed Form N-400 on September 8, 1999. He met the physical presence requirements during the statutory period. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. He cited several rulings from the 1940’s to support his claim that he had met the continuous residence requirement.


The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.

 

[immigrateful]

A *single* trip of less than 6 months will not break continuous residence for naturalization, but *multiple* long trips of less than 6 months each, interspersed with very short stays in the US in probably will break it.

http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2

Jackolantern,

This link does not contain the excerpt you have posted. Can you please repost the link?

In my case I am single and gave my India address as a my address of residence. But I had applied for a re-entry permit since this was all planned and I always had an intent to return back USA. I just did not know when - whether it would be 3 months or 6 months for 3 years. So I used to purchase a return ticket from the USA and remain in India as long as my situation did not change. Once my situation changed I promptly resumed my life here in the USA.

Also, a key point to note and a major differentiating factor is that novi400 sent in his N-400 on August 11, 2005 after entering the USA for a final time, presumably, in early August. In my case, I've already been in the USA for more than 1 year and 4 months after my final re-entry and as of the date I sent my N-400 (although I did re-visit India again for 5 weeks on business during that 1 year & 4 month period). Going by the way things are going, I would have been in the USA for about 2 years at the time of my naturalization interview.

 

[Jackolantern]

Try this more direct link (scroll down about 70% of the page):
http://www.uscis.gov/propub/templat...tion|chapter 74.2c&s_type=all&hash=0-0-0-1282

Continuous Residence Example


The applicant filed Form N-400 on September 8, 1999. He met the physical presence requirements during the statutory period. However, on June 15, 1999, he was sent overseas on an assignment by his employer, which is not an American corporation. He appeared for his interview on January 24, 2001. He informed the examining officer that he was on temporary work assignment in the U.K. and Russia. He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England. He was not gone for more than six months at any time, but his trips back to the U.S. from June 1999 to January 2001 were brief and sporadic. He cited several rulings from the 1940’s to support his claim that he had met the continuous residence requirement.


The application should be denied for lack of continuous residence under Section 316 of the Act. He failed to reside continuously in the U.S. from the date of application for naturalization up to the time of admission to citizenship.

 

[Jackolantern]

Going by the way things are going, I would have been in the USA for about 2 years at the time of my naturalization interview.

Still not enough. Once continuous residence is broken, you have to do 4 years and 1 day of continuous residence (since the day it was broken) to be eligible for citizenship.

 

[immigrateful]

Try this more direct link (scroll down about 70% of the page):
http://www.uscis.gov/propub/templat...tion|chapter 74.2c&s_type=all&hash=0-0-0-1282

Thanks for the correct link. I read a little further below and I think the adjudicators field manual cites this example for emphasizing the point that the applicant needs to maintain CR through to interview (and perhaps even oath). However, I admit an IO not in the right mind might interpret this to deny an N-400 application.

 

[boatbod]

In my case I am single and gave my India address as a my address of residence.

Then you are doubly $crewed because you already admitted you abandoned your US residence.

May I recommend we discuss this problem in just one thread. Right now we seem to have more or less the same information in two places. http://www.immigrationportal.com/showthread.php?t=254856

 

[m_abraham12]

I had the interview twice

hello everyone,

I am panicked, as I am going tru similar situation.

I took several trips outside US in last 5yrs but always less than 6 months. My case is borderline with only 32 months of stay in the US in last 5yrs. My husband stay in London & i have been visiting him since i got married in 2003.

I applied in march...As u can imagine i have the toughest interview in June. I never knew an IO can be this rude and mean...but i guess they have given all the rights to behave that way..she was planning on denying my case right away but i guess since i havent break my cont residency in the US they gave me another chance to prove my residency in US for the time i was outside. She called me a visitor and i cud hear her explaining the same to the supervisor. I think its the supervisor who asked her to give me another chance..My second interview was few days ago...

This time i went with a lawyer and luckily it was a diff IO and she was decent enough not to yell and be rude...I guess maybe coz i had the lawyer with me.. but i havent got the result yet as she transfer my file to the supervisor with a recommendation for approval, she says...I am told tht i will get a decision letter via post in couple of weeks.

After reading all these threads i dont know wht the outcome is going to be. I am sure they are aware that my intention is to become a citizen to bring my husband to the US which is true. They DO NOT CARE about the agony you go tru being away from your spouse or kids for years.

Well I learned my lesson or still learning and i am telling my friends in similar situation not to take frequent extended trip outside US until they get their citizenship.

Do you think i will receive the letter soon as the IO informed me or is it gonna be a denial letter in few months time???

 

[immigrateful]

Then you are doubly $crewed because you already admitted you abandoned your US residence.

I got my oath letter yesterday and actually this was more like a cake walk.

No one can screw with you for being honest.