urgent,pls help with residency req for citizenship

K

khalas

Registered Users (C)
Hi All,
I know that this issue has been discussed in many other threads but I'd really appreciate if experienced members can provide more/clear insight regarding my specific case.Here it goes...(sorry about the long post)

- Got PR on 12/1/2002 which makes me eligible to apply for citizenship now.However right after obatining PR my USA employer (one whoe sponsered my GC) sent me (along with family))on a foreign assignment for 3-5 months.

- However the assignment actually continued for 1 yr and 2 months i.e. up till Feb/2004..in extensions of 2 months each time). never applied for 'permit'.

- In between I kept coming back to the USA every 4-5 months to ensure that no single absence>6 months. However my stay in the US was only for 7-10 days each time.my single most absense is 173 days.

- During this period my stuff & car were in storage here in the USA. I kept all credit cards and used them/pay bills regularly,maintained bank accounts,pay insurance premiums and even maintained cell phone in US.

- I filed US income tax every year (however used form 2555 for foreign earned income exclusion under physical presense test condition).

- My employer gave me a letter stating that I was a full time employee on a foreign assignment and will return to USA by the end of '03 after finishing the overseas assignment.I am still with the same US employer.

- After coming back to USA in Feb'04 , I have lived here alomost continuously for 3.5 yrs(one 20 day trip to india).So technically I don't violate any of the residency related rules (I think):)

- I own a home in the USA now & there are no other issues with regards to my case.

Now with all this backgroud, would it be safe to apply for citizenship now..do I stand a chance? If not, does 4yr+1 day rule apply to my case or do I need to wait for another year to have clean 5 yrs before I file?

I'd really appreciate your help with this
 
Disclaimer: I am just another N-400 applicant

Based on all the information in your post, I think you should go ahead and apply. Sometimes you will get very conservative and perhaps over-cautious opinions on this forum - search all past threads and draw your own inferences.

I think you have a strong case.
 
Disclaimer: I am just another N-400 applicant as well

khalas said:
- However the assignment actually continued for 1 yr and 2 months i.e. up till Feb/2004..in extensions of 2 months each time). never applied for 'permit'.
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Alternately the case can be made (and you are making it) that you have been outside of the country for 1 year 2 months, which would plead for the 4 year + 1 day rule. 90 days before February 2008 (4 years + 1 day after Feb 2004) is not so far away - November 2007. You could use this time period between now and then to start assembling your file, getting more details about the applicability of the 4 year + 1 day rule, getting supporting documents. Just my 2 cents.
 
Your case would be much weaker if you were currently residing and working abroad, however you do have the benefit of having been back in the US for a good long time. Its probably worth a shot at applying, and if that doesn't work out, you should be able to utilize the 4yr+1day exception as McMahon outlined.
 
Wait until reaching the 4 year + 1 day which is just a few months away, rather than applying now, risk getting denied, then having to wait much longer to reapply (and spend money again).
 
Well the just visiting the US for 7-10 days unfortunatly won't count. You have to be visiting the foreign country not the US.

Well even though you were living abroad, it was a US company who assigned you there, so I don't think you have any red flags at all that would concern the IO. As to the dates exactly when you officially lived back in the US, that's about the only thing.

The IO may deny it now because of that, but you would be able to apply further down the road and be fine. I'd wait till the 4yr thing is current which someone stated was November. Just wait till then and save the possibility of wasting a few hundred dollars...
 
Khalas,
Looking at your case, you can apply for citizenship now. You did maintain (compared to others in your situation) reasonable financial and domicile ties with the US during your overseas assignment. Having said that, since you returned to the US in Feb 2004, you might aswell wait until Feb 2008 and apply then. Unless there is an urgent need for US citizenship, a 5 month wait is what I would advise. Good luck!!!
 
khalas said:
- After coming back to USA in Feb'04 , I have lived here alomost continuously for 3.5 yrs(one 20 day trip to india).So technically I don't violate any of the residency related rules (I think):)

- I own a home in the USA now & there are no other issues with regards to my case.

Now with all this backgroud, would it be safe to apply for citizenship now..do I stand a chance? If not, does 4yr+1 day rule apply to my case or do I need to wait for another year to have clean 5 yrs before I file?
Click to expand...

I think you should consider Feb'04 as the start date of your continuous residence, and start counting time (five years) from there. If you apply now, you risk not only having your application denied but also (when you resubmit in 2009) having to explain the IO the circumstances of earlier denial. Better safe than sorry.
 
My understanding is that you have to reside in the US for at least 1 year since becoming PR to qualify for 4years+1day rule upon return from foreign country with re-entry permit. I read this in the IO manual, a link to which was posted on this web-site not a long time ago...
 
sheveal said:
My understanding is that you have to reside in the US for at least 1 year since becoming PR to qualify for 4years+1day rule upon return from foreign country with re-entry permit. I read this in the IO manual, a link to which was posted on this web-site not a long time ago...
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There is nothing in the reference below that mentions a minimum 1yr stay before invoking 4yr+1day rule. Maybe you are thinging of the 1yr qualification period that applies to N-470 applicants?

Adjudicators Field Manual - detailed discussion part 3
 
Hi All,
Thanks for your suggestions. I really appreciate the help.
I am inclined towards waiting for the 4yr+1 day period and then apply. However now my question is ..."does the 90 day rule apply for the 4yr+1 day cases as well? I thought it applied only to 5yr rule cases. I will complete my 4yr+1 day on 2/13/08..so can I apply in late Nov'07 or should I wait for 2/13/08 to apply?...Thank you all
 
4 Year + 1 day is the requirement for a 5-year eligibility - this means that 364 days of overseas residence count towards the 5-year period.

Thsi would logically mean that the 90 day rule should apply to the 5-year eligibility period under which you are qualifying (even if 364 days of the 5-year period are through overseas residence).

My non-lawyer two cents.
 
khalas said:
Hi All,
Thanks for your suggestions. I really appreciate the help.
I am inclined towards waiting for the 4yr+1 day period and then apply. However now my question is ..."does the 90 day rule apply for the 4yr+1 day cases as well? I thought it applied only to 5yr rule cases. I will complete my 4yr+1 day on 2/13/08..so can I apply in late Nov'07 or should I wait for 2/13/08 to apply?...Thank you all
Click to expand...

That's wrong. You should be waiting for the 5yrs minus 90days period, not 4yr plus 1day. The 4yr+1day rule doesn't fit your case.
 
I take that back...couldn't find it in the manual, must have been related to N-470.
However, I found interesting clarification about 4y+1d which basically says that with a break of countiniuos residence one could shorten the eligibility for naturalization period from 5 years to 4.5 years. (see below)
For example, if applicant leaves the US after becoming PR for a period slightly over 6 months and breaks countiniuos the residence then upon return the 4y+1d will apply to him/her, i.e. can qualify for naturalization 6 months eairlier compared to if he/she hadn't left the US. Isn't that strange?

Adjudicator's Field Manual - Redacted Public Version \ Appendices \ Appendix 74-13 Continuity of Residence for Naturalization Purposes.
The following is the text of a letter from the Chief of the Naturalization and Special Projects Branch of the Office of Adjudications dated September 23, 1993:


Kiblan & Battles

Attorneys and Counselors at Law

1420 Beverly Rd., Suite 340

McLean, VA 22101



ATTN: Ms. Malea Kiblan


Dear Ms. Kiblan:


Your letter to Mr. Lawrence J. Weinig, Assistant Commissioner, Adjudications, has been referred to me since it concerns a naturalization matter.


You have asked for an advisory opinion in cases where a naturalization applicant has been determined to have broken his/her continuity of. residence for naturalization purposes because of an absence of more than six (6) months but less than one (1) year, pursuant to the language in Section 316(b) of the Immigration and Nationality Act.



Specifically, you would like to know if the first date he/she will be eligible to reapply for naturalization will be four (4) years plus six (6) months from the date of reentry or four (4) years plus one (1) day from reentry.



The correct date would be four (4) years plus one (1) day. This is explained in 8 CFR 316.5(c) (1) (ii).



I apologize for the delay in responding to your letter but, I hope that this information has been of assistance.



Sincerely,
 
sheveal said:
Specifically, you would like to know if the first date he/she will be eligible to reapply for naturalization will be four (4) years plus six (6) months from the date of reentry or four (4) years plus one (1) day from reentry.



The correct date would be four (4) years plus one (1) day. This is explained in 8 CFR 316.5(c) (1) (ii).
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The question and the answer probably were assuming that by the time 4 years and 1 day since returning have passed, the person would have had at least 5 years since obtaining the green card.
 
so,when can I really apply ???

Thanks,again,everyone. So, could I apply 90 days prior to completing 4yrs and 1 day or not????:confused:

Just an FYI, I would be 5yrs+ 3 months from beconing PR by the time I file my case coming Feb'08
 
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