US Citizenship: Physical presence of 30 months not satisfied

#1
I got my green card in March 2004, which makes me eligible to apply for citizenship right about now (Dec 2008), which will be 5 years minus 90 days.

I have already spent 934 days outside the US as of now. Which means I have failed the physical presence requirement (of 900 days) by a month.

Are there any exceptions under which I can still apply for citizenship?


I read somewhere (online) that certain cases may apply for citizenship even if not establishing physical presence. Examples include US govt contract work, religious work, etc... but it also includes something called "working in communication media". (What exactly does it mean?) I am a filmmaker, which is really why I have to travel so much to India. Will I be eligible to apply?

(930 days is at the time of application, so I'll be much worse by the time of interview and oath. But I know a friend who barely managed to apply and then failed the physical presence requirement by interview and oath. But that person still got his citizenship. So there is a chance of getting it if one can just apply.)
 

Mr Vertigo

Registered Users (C)
#2
I would seriously advise you to wait for another month, at the very least. I would also recommend that you wait for 1,5 months so that you have some buffer days between your eligibility and the days you spent physically in the US. It is not a good idea to apply right on the day you become eligible; you always need a buffer zone to account for any miscalculations you may make or your IO may make. You don't want to be denied because you forgot to carry a 1 when you added your days ;)

A month or month and a half is not a long time to wait if you've waited 5 years already. Trust me, you'll be better off for it.
 

Jackolantern

Registered Users (C)
#3
Just wait inside the US until you have the 30 months of physical presence. Failing the physical presence requirement is resolved simply by waiting it out. The 5 year period counts backwards from when you apply for citizenship, so if you wait long enough inside the US, the day will arrive when you have accumulated the required 30 months.

However, given that you have been outside the US for that much time, you may be denied for breaking continuous residence, depending on how long and close together your trips were. If the overseas filmmaking you do is for a non-US company, your chances of denial are high.

(930 days is at the time of application, so I'll be much worse by the time of interview and oath. But I know a friend who barely managed to apply and then failed the physical presence requirement by interview and oath. But that person still got his citizenship. So there is a chance of getting it if one can just apply.)
The physical presence requirement is only for the 5 years counting back from when you apply, but the continuous residence requirement continues all the way until the interview and oath. Taking long trips after applying but before the interview or oath puts you at risk of being denied for breaking continuous residence.
 
Last edited by a moderator:

Bobsmyth

Volunteer Moderator
#4
I read somewhere (online) that certain cases may apply for citizenship even if not establishing physical presence. Examples include US govt contract work, religious work, etc... but it also includes something called "working in communication media". (What exactly does it mean?) I am a filmmaker, which is really why I have to travel so much to India. Will I be eligible to apply?
In order to take advantage of the physical presence waiver (INA 319(c), 8 CFR 1430(c), 8 CFR 319.6)) for communication media personnel , you have to have been employed by a US non profit organization for at least 5 years as a LPR that promotes US values overseas and is recognized by attorney general such as Radio Free Europe or Radio Marti.
 
Last edited by a moderator:
#5
All of you, thanks for the responses.

However, given that you have been outside the US for that much time, you may be denied for breaking continuous residence, depending on how long and close together your trips were. If the overseas filmmaking you do is for a non-US company, your chances of denial are high.
I'm not really worried about the continuous residence clause. I've really acted like a US resident when abroad. I've kept my credit cards, phone, I even access my US ATM from abroad, and I've always been coming back every few months... Anyway, if push comes to shove I could possibly prove I never relinquished residency.

Just wait inside the US until you have the 30 months of physical presence. Failing the physical presence requirement is resolved simply by waiting it out. The 5 year period counts backwards from when you apply for citizenship, so if you wait long enough inside the US, the day will arrive when you have accumulated the required 30 months.
As for the physical presence - the requirement is "30 months outside the US," rather than "30 months inside." What that means is that since I have already spent 30+ months outside, waiting is not gonna solve my issue. I have some "inside" time at the start of my GC period. So I'll have to repeat my "inside" time now and then start eating into my "outside time." In other words to lose 2 months of outside time at this point, I'd have to stay inside for about 9-10 months.

Hope you get what I'm saying. But anyway, if were in a position where I could stay inside for 10 months, I wouldn't be in this situation in the first place. It ends up being a choice between being a filmmaker or a US citizen :) (I am a filmmaker by the way and that's the reason I end up spending so much time outside the US - nothing goes by plan and invariably takes a lot of time.)

My question is, given that I'm a hopeless case, would it be worth it if I applied for citizenship anyway - stating my case and explaining the situation clearly. Is the physical presence issue enough to outright reject my application, or is there a chance the case officer may look into it further and maybe possibly grant a waiver (its only 2 months after all)?
 
Last edited by a moderator:

Bobsmyth

Volunteer Moderator
#6
The two factors that will set you up for denial if you apply now are:

1) Working outside US without approved N-470

2) Lack of physical presence in US


The officer won't grant you a waiver for physical presence if your case doesn't fall under any provisions of INA 319.
 
#7
What is N470? I'm working for my own company which is based in the US. So I'm not working for some other company outside. I've made a film for my company in NYC before and now I'm making a film set abroad. All my trips outside have been business trips for this company of mine. I've also filed my tax returns as such.

And I have a re-entry permit. I haven't had to use it yet though. (Not sure if this has any bearing on the issue.)
 

Bobsmyth

Volunteer Moderator
#8
The N-470 allows you to preserve your continuous residency requirement for naturalization purposes while working abroad for US government or qualifying US based cooperation.

http://www.uscis.gov/portal/site/us...nnel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

If you're self employed, the N-470 will be a long shot since you'd have to prove how your US film company is engaged in the development of foreign trade. Also, to qualify for N-470 you must have at least 1 year of uninterrupted physical presence in US since you obtained GC.

The reentry permit allows you to retain your LPR status while being outside US for more than 1 continuous year and does nothing for your continuous residence requirement.
 
Last edited by a moderator:

Jackolantern

Registered Users (C)
#9
I'm not really worried about the continuous residence clause. I've really acted like a US resident when abroad. I've kept my credit cards, phone, I even access my US ATM from abroad, and I've always been coming back every few months... Anyway, if push comes to shove I could possibly prove I never relinquished residency.
It's not yourself you have to convince. It's not easy to convince them of maintaining continuous residence if you have a pattern of spending several months outside the US repeatedly, with the repeated trips being close together (like six trips of 4 months each with one week in the US in between), or your extended traveling is continuing while your N-400 is in process. You hurt your case if you spend 4-5 months abroad and then hop off the plane a week before your interview, followed by leaving again 3 days after the interview.
As for the physical presence - the requirement is "30 months outside the US," rather than "30 months inside." What that means is that since I have already spent 30+ months outside, waiting is not gonna solve my issue.
Waiting inside the US will resolve your issue (and I specifically mentioned "inside the US" in my above post). Waiting outside will make it worse.
 
Last edited by a moderator:

Jackolantern

Registered Users (C)
#10
What is N470? I'm working for my own company which is based in the US. So I'm not working for some other company outside. I've made a film for my company in NYC before and now I'm making a film set abroad. All my trips outside have been business trips for this company of mine. I've also filed my tax returns as such.
As a self-employed person it is unlikely you would have been approved for an N-470 even if you tried, but for continuous residence it does help that you are working for a company registered in and paying taxes to the US.
 
Top