What to do if continuous staying was broken?

K

kosmos666

New Member
Dear all,

I hope that your knowledge and experience can help me to clarify my options now!

I have been lawful resident in US since late 2004. For 4.5 years I was residing in US apart from some vacation trips that never been longer than a month. However, few months before I was eligible to apply for a citizenship, I was given an opportunity to finish my education in Europe. So, I moved there and first year tried not to break the continuous staying. Then I was misinformed that if I have a decent reason to stay outside of US longer than 6 month - I can do so (thinking that study in europe counts). However, once I entered back to US, I was told by the official instances that studies do not count, since there are universities in US as well. Anyways, since then, I tried not to break the 6 month staying but I am still in Europe finishing my studies.

Here is a question, to be fully eligible to apply for a citizenship once I finish my studies and move back, do I have to accumulate 2.5 year within 5 years of continuous staying again, or is there any other options for someone like me? I have a close family living in US, have some property and bank accounts (which can be considered as a proof that I've never planed to abandon the residence in a first place).

Please, if anyone has an experience with similar situation, or have some knowledge - I will be happy to read your answers!
Many Many thanks!!!!


P.S. Please, avoid sending a judgmental or rude replies - if for some reason I posted a misleading/partial information you can ask for clarification. If the situation seems for you totally stupid - there is not need to say.
 
read 8 CFR 316.5(c)(1)

easiest thing to do is wait 4 years and 1 day after you return to the U.S. before you file an N-400

Did you get a re-entry permit to protect your greencard status?
 
kosmos666 said:
Here is a question, to be fully eligible to apply for a citizenship once I finish my studies and move back, do I have to accumulate 2.5 year within 5 years of continuous staying again, or is there any other options for someone like me?
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You seem to be mixing up continuous residence and physical presence.

Being in the US for 2.5 years out of the past 5 years is the physical presence requirement. It is a straight mathematical determination by counting your days in and out of the US, and there is no room for discretion and subjectivity.

Continuous residence is a separate and additional requirement -- you need to keep your trips abroad below 6 consecutive months. However, there is discretion and subjectivity involved; you can take a trip of over 6 months and still be found NOT to break continuous residence, or you can be found to break continuous residence after taking multiple trips, all of which were under 6 months each. The interviewer (and maybe his/her supervisor) will look at your overall travel pattern and other evidence of ties to the US and make the determination.

If you list your travel dates in the past 5 years we can give you a better idea of what your prospects are.
 
kosmos666 said:
P.S. Please, avoid sending a judgmental or rude replies - if for some reason I posted a misleading/partial information you can ask for clarification. If the situation seems for you totally stupid - there is not need to say.
Click to expand...

Why are people so touchy?
Lesson one in how to avoid getting picked on ... don't point out that you don't like it.
Lesson two ... this is a free forum, free advice, free country ... people will do / say what they want to.
The best way to take advice is to see what makes sense to you, and ignore what does not.
And even then know that ... the advice you get sometimes may not be correct (not in this case though, I think Big and Jack did a good job).
If you can not ignore what I wrote ... read my signature ... is it line 2 or 3 I don't remember.
 
Dear BigJoe5 and Jackolantern!

Thank you so much for your great replies! I made a list of my travel dates - since the first day of arrival to us I was on immigrant visa (family reunion), so her should be no confusion between physical and legal staying. I tried to make it as easier to read as possible. the first period I was mostly presented in US and so I specified the period when I was away of US, the second part is when I mostly was in Europe and so I specified the time period when I was in US.

10/2004-02/2006 - in US
1 month away from US
03/2006-07/2007 - in US
3 weeks away from US
08/2007-05/2009 - in US

Here is the Europe starts:
05/2009-11/2009 - in Europe (less then 6 month away)
1 week in US for thanksgiving holiday with family in US

12/2009-07/2010 - in Europe (7 months away - continuous staying was broken)
6 weeks with the family for summer holidays in US

08/2010-12/2010 - in Europe
2 weeks for christmas holidays in US

12/2010 - now
(planning to cross the boarder before 6 months expire but could not stay long because of the example)

Thank you so much!!!!!!!!!!
 
Looking at it from the most negative perspective ...
-- Your trip of May 2009 through July 2010 with one week in US is essentially one long trip.
-- And then your trip from Aug 2010 through NOW is a single trip with a 2 week break in US ... which may not count for much.
-- Your safest date to apply for naturalization will be 4 years and 1 day after you return from the current / NOW trip; and then too after you meet the physical presence (30 months in 5 years) and not have such trips again.

However, whether the IO will be as strict ... you never know.
 
kosmos666 said:
Here is the Europe starts:
05/2009-11/2009 - in Europe (less then 6 month away)
1 week in US for thanksgiving holiday with family in US

12/2009-07/2010 - in Europe (7 months away - continuous staying was broken)
6 weeks with the family for summer holidays in US

08/2010-12/2010 - in Europe
2 weeks for christmas holidays in US

12/2010 - now
(planning to cross the boarder before 6 months expire but could not stay long because of the example)
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Doesn't look good ... one trip of over 6 months, which was preceded by a trip of nearly 6 months with just a one-week gap. Plus a few more trips of multiple months each (although below 6 months each). You'd need a lenient interviewer in order to get approved if you apply with all those long trips in your 5 year window.
 
I was afraid to hear something like that... I could not stay longer in US because I am officially enrolled into master program and had classes. But now, once I arrive to US I am still not understanding correctly is there 5 year or 4 years and 1 day I need to count before to apply for the citizenship? Since the first year after the break of continuous staying I will most of the time be in Europe, can I still consider this year as a first year towards new term? and do I have to accumulate 30 more months again? For how long can I be absent from US within this 4/?5 year period to be safe?

Thank you for your replies!
 
kosmos666 said:
I was afraid to hear something like that... I could not stay longer in US because I am officially enrolled into master program and had classes. But now, once I arrive to US I am still not understanding correctly is there 5 year or 4 years and 1 day I need to count before to apply for the citizenship? Since the first year after the break of continuous staying I will most of the time be in Europe, can I still consider this year as a first year towards new term? and do I have to accumulate 30 more months again?
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Every time you take a trip that breaks continuous residency, the naturalization eligibility clock for both the physical presence and the continuous presence resets to ZERO (and it is entirely irrelevant how much time and when you spent in the U.S. prior to that trip - none of that time can be used for future naturalization eligibility calculations).

In particular, after the return from such a trip you must accumulate at least 30 months of physical presence in the U.S. from scratch, before you may file N-400.
For the continuous residency requirement, after a trip of more than a year in duration that broke such residency, you will be considered to have satisfied the continuous residency requirement 4 years and one day after the return from that trip.

For how long can I be absent from US within this 4/?5 year period to be safe?
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There is no simple answer to such question and no magic number of days that would be "safe". Even a fairly short trip abroad can disrupt continuous residency, depending on circumstances.
What matters is the purpose and nature of the trip and the kind of ties to the U.S. that you maintain during it.
 
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baikal3 said:
Every time you take a trip that breaks continuous residency, the naturalization eligibility clock for both the physical presence and the continuous presence resets to ZERO (and it is entirely irrelevant how much time and when you spent in the U.S. prior to that trip - none of that time can be used for future naturalization eligibility calculations).
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I am not sure I am 100% with that, although the benefit to the OP might be only a couple of weeks.
After the continuous residence is deemed to be broken, you can file 4 years and 1 day after that.
Re-establishing continuous residence ... of course in these 4 years and 1 day you need to not make similar long trips.
Re-establishing physical presence .. I think you should be able to count back 5 years from the date of filing and see if you have 30 months accumulated by the time of filing. Since the 5th year (counting backwards) was your big physical presence, the maximum gain you will have is the 2-3 weeks you came back to US to give the appearance of trips shorter than 6 months. It may not matter most of the times since you would have accumulated enough time in US in these 4 years, but if you continue to be borderline present, it might help.
 
sanjoseaug20 said:
I am not sure I am 100% with that, although the benefit to the OP might be only a couple of weeks.
After the continuous residence is deemed to be broken, you can file 4 years and 1 day after that.
Re-establishing continuous residence ... of course in these 4 years and 1 day you need to not make similar long trips.
Re-establishing physical presence .. I think you should be able to count back 5 years from the date of filing and see if you have 30 months accumulated by the time of filing. Since the 5th year (counting backwards) was your big physical presence, the maximum gain you will have is the 2-3 weeks you came back to US to give the appearance of trips shorter than 6 months. It may not matter most of the times since you would have accumulated enough time in US in these 4 years, but if you continue to be borderline present, it might help.
Click to expand...

Yeah, I stand corrected: for the physical presence requirement you just count back five years from the date of filing and count the days that you were in the U.S. during that period. The physical presence requirement is almost always met before the continuous residency requirement, so as a practical matter resetting of the clock for the continuous residency requirement is the most relevant factor.
If using a 4 years plus 1 day rule after an absence of more than a year, counting back 5 years from the time of filing would not overlap the pre-one-year-absence period anyway.

I do not think we have had any reports of successful (or unsuccessful) attempts to use the 4 years plus one day rule after an absence that was less than a year but more than six months. I am still skeptical that the 4 years plus one day rule can even be applied in such a situation, but even if it can, I would imagine that by the end of those 4 years the physical presence requirement would almost always be satisfied without having to dip in the period preceding the return from the last trip that broke continuous residency.
 
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