When to reapply second time for Citizenship ??

M

masoom77

Registered Users (C)
Anybody please guide me for my wife's case? Here, her file details,
She got her GC on 14th July 2002 with her parents and younger brother. She stayed for 3 weeks in US and went back to India as she was studying in engineering program. She made 2 short visits every year till 12th July 2004 till her completion of study in India. From that date she mostly stayed in US with 2 to 3 weeks single visit of India every year. I am mentioning details about total number of days she was out of US since 2002....

Year 2002 - Except those 3 weeks she was out of US [ More than 180 days absent]
Year 2003 - Two visits of US with total 90 days stay [ More than 180 days absent]
Year 2004 - 171 days stay in US [ 194 days absent from US]( From 12th July 2004 she mostly stayed in US)
Year 2005 - 340 days stay in US [ 25 days absent from US]
Year 2006 - 365 days stay in US [ 00 days absent from US]
Year 2007 - 315 days stay in US [ 50 days absent from US ]
Year 2008 - 291 days stay in US [ 74 days absent from US]
Year 2009 - Till date from January 2009, she is in US [ No visit outside US]

She has applied for Naturalization in April 2007 along with her family members. They were mostly stayed in US. So, except her all three family members have received US citizenship in early 2008. But my wife got denial from IO. During the interview IO told her that he has to take his supervisor's opinion as she was not fulfilling residency rule during initial two years. He told that study reason is o.k. and in past USCIS is much lenient but now things are changed. But things will be cleared once his supervisor will review this matter and you will be notified about final decision in few days. In early march 2008 my wife and her lawyer made appeal against denial decision with all documents like her ties with her US based parents, her US bank account details, as her father was paying her education fees in dollars they have shown those fees receipts and each year’s transcripts. But there was not change of decision and they replied that she has to apply again.
Now the dilemma is about re-application! On which date she has to apply again? If, we consider a procedure time of approximately 6 months then will it be o.k. to apply again in April 2009 or July 2009 or in January 2010?
Kindly, help us into this matter.
 
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Seems to me that she would be immediately eligible to apply under 4 years +1 day rule, since she can be credited up to 364 days for her days outside US from July 2002 to July 2004.
 
Thanks for reply

I assume that the 4 year + 1 day rule is for people who established residence and then broke it. If, someone stay in US after getting a green card for sufficient time ( Example : 1 or 2 years) and then left US for more than 1 year with re-entry permit and then arrive in US and continuously stay for 4 year then he/she will be eligible for 4 year + 1 year rule. (USCIS will consider 364 days against initial couple of years stay before long break of continuous stay)
As my wife’s stay in initial two years was less than 6 months so, I believe she may not be eligible for this category. [These all I know. I may be wrong]. :confused:

Please, put some more light into this vital matter.
 
The 4 years +1 year rule is written in such a way to mean that the last 364 days of any continuous stay outside US of more than 1 year can be credited towards continuous residence requirement.
However, there has been an ongoing discussion on this forum based on a 1993 INS memo that has lead to some to question whether the rule only applies to trips over 1 year.
It might be worth checking with an immigration lawyer to see if your wife is eligible for the rule.

Otherwise, she would only be eligible to apply 5 years (minus 90 days) from the last presumed break in continuous residency, which would mean April 2009. Given it's only 2 months away, it doesn't make much of a difference either way.
 
Thanks a lot for your kind suggestions.
So, even if, she will not be eligible for 4 year +1 day rule, she can apply in April 2009. I have couple of questions in my mind.
(1) Will her last five year stay be considered from July 2004 to July 2009 or IO may insist the time frame from 1st January 2005 to 1st January 2010 ?
(2) Her total days stay in year 2004 in US is just 12 days less than 180 days. So, will they eliminate entire year 2004 from total 5 years period? Even if, they do so then can we count her years of US stay from July to July of each year?
If, this way we can count then., Any date after 15th April 2009 is best suitable for filling.
I hope you can understand our confusion particularly after previous denial.
 
masoom77 said:
(1) Will her last five year stay be considered from July 2004 to July 2009 or IO may insist the time frame from 1st January 2005 to 1st January 2010 ?
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Her continuous residency clock is reset from July 2004, so only the period after July 2004 up until oath is looked at for continuous residency requirement.

masoom77 said:
(2) Her total days stay in year 2004 in US is just 12 days less than 180 days. So, will they eliminate entire year 2004 from total 5 years period? Even if, they do so then can we count her years of US stay from July to July of each year?
If, this way we can count then., Any date after 15th April 2009 is best suitable for filling.
I hope you can understand our confusion particularly after previous denial.
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They count from the time of the last continuous residency break, not from year of last continuous break.. In her case, the last continuous residency break was previous to her return in July 2004, so the 5 year clock starts after her return, not after the end of the year.
 
"Dilemma about Re-Application for Citizenship !"

Thanks again for your reply. :)
I think you only have detailed knowledge about naturalization procedure and rules. All other members just visited this post and not even replied a single word. :confused:
I assume these types of circumstances are rare so very few people have idea.
 
masoom77 said:
Thanks again for your reply. :)
I think you only have detailed knowledge about naturalization procedure and rules. All other members just visited this post and not even replied a single word. :confused:
I assume these types of circumstances are rare so very few people have idea.
Click to expand...


You applied too early before the 4 years and 1 day.

http://www.timeanddate.com/date/dateadd.html
Use this to calculate the exact date since your return from the last trip that broke your continuous residence. To be on the safe side you could apply 5 years minus 90 days from the last trip that broke your continuous residence.



C) Absences of Between Six Months and One 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 8 CFR 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence unless the applicant can establish otherwise to the satisfaction of USCIS . 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.




If the applicant claims that he/she did not disrupt the continuity of residence you must ask additional questions about the absence and the nature of his/her claimed continuous residence in the United States. Some of the things that you should ask for are:


• Evidence that the applicant did not terminate his or her employment in the United States;


• Evidence that the applicant's immediate family remained in the United States;


• Evidence that the applicant retained full access to his or her United States abode; or


• Evidence that the applicant did not obtain employment while abroad. Also, this would normally include evidence of how he/she supported him/herself during the absence.


You should ask for other evidence if the items listed above do not cover the issue fully in a specific case.


If the applicant is unable to establish that he/she did not disrupt residence, he/she will be ineligible for naturalization. The applicant will be eligible to re-apply for naturalization, four years and one day (two years and one day if applying under section 319(a) of the Act) from the most recent date that he/she returned to the United States. See the letter from the Headquarters Office of Naturalization and Special Projects to Messr. Kiblan and Battles dated September 22, 1993, located in Appendix 74-13 .


The information contained in this area is particularly important in determining if there has been any break in the applicant's residence for naturalization purposes and in determining if the applicant has the required physical presence. The statute provides that the requisite continuity of residence for naturalization purposes shall be conclusively broken by any continuous absence of a year or more during the statutory period. Occasionally, an applicant will admit an absence just short of one year and there will be nothing in the related file to confirm or refute this testimony. Under such circumstances, an especially detailed interrogation should be conducted to determine the exact dates of departure and reentry. Under the statute, the requisite continuity of residence is also broken by an absence abroad of more than six months but less than a year, unless the applicant establishes that he did not in fact abandon his residence.


[(b)(2) or (b)(7)(E)]


Unless the applicant demonstrates that the absence did not disrupt the continuity of residence, he or she will have to wait at least four years and one day before he or she can be eligible to apply again for naturalization. [See 8 CFR 316.5(c)(1)(ii) and the memorandum dated 9/22/93 located in Appendix 74-13 .].


(D) Absences in Excess of One Year . Unless an applicant applies for benefits in accordance with section 316.5(d) of the Act, absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required shall disrupt the continuity of the applicant's residence.


When you question the applicant about absences, keep in mind that an applicant who has been absent for a period totaling more than one year, 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 who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the date of the applicant's return to the United States to resu me permanent residence.
 
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masoom77 said:
Thanks again for your reply. :)
I think you only have detailed knowledge about naturalization procedure and rules. All other members just visited this post and not even replied a single word. :confused:
I assume these types of circumstances are rare so very few people have idea.
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Actually this type of scenario is very common. Applicants often wonder if they are eligible for 4 years +1 day rule even if they haven't left US for more than 1 continuous year, or when they are eligible to apply after they have broken continuous residency ties.
 
So...can we inquire at USCIS whether her case is eligible for 4 year + 1 day rule ? or Just wait till mid-April 2009 for routine procedure.

During appeal against denial in March 2008 the committee of USCIS told my wife and her lawyer that she can apply after 2 years. [ in 2010 ]. They should have answered like Mid-April 2010 or even they should have replied that after the year 2008 you are eligible under 4 year + 1 day rule. They didn't mention any of above two early options.

Do they intentionally want to delay any one's file by not giving option of early eligibility ( Even someone is going to eligible much earlier ).

Even We apply in late April 2004 then approximately till the oath almost 5 to 6 months will pass so the entire 2009 year should be counted additionally for her eligibility. Am I right ?
 
Sorry wrong word typed in previous reply. [ Instead of Mid-April 2010 ..i wanted to mention Mid-Year 2008]

So...can we inquire at USCIS whether her case is eligible for 4 year + 1 day rule ? or Just wait till mid-April 2009 for routine procedure.

During appeal against denial in March 2008 the committee of USCIS told my wife and her lawyer that she can apply after 2 years. [ in 2010 ]. They should have answered like Mid-April 2008 or even they should have replied that after the year 2008, you are eligible under 4 year + 1 day rule. They didn't mention any of above two early options.

Do they intentionally want to delay any one's file by not giving option of early eligibility ( Even someone is going to eligible much earlier ).

Even We apply in late April 2004 then approximately till the oath almost 5 to 6 months will pass so the entire 2009 year should be counted additionally for her eligibility. Am I right ?
 
masoom77 said:
So...can we inquire at USCIS whether her case is eligible for 4 year + 1 day rule ? or Just wait till mid-April 2009 for routine procedure.
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Sure you can inquire, but don't expect to get a straight answer from them. Contact an immigration attorney instead.
masoom77 said:
During appeal against denial in March 2008 the committee of USCIS told my wife and her lawyer that she can apply after 2 years. [ in 2010 ].
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What did they base this on?

masoom77 said:
Even We apply in late April 2004 then approximately till the oath almost 5 to 6 months will pass so the entire 2009 year should be counted additionally for her eligibility. Am I right ?
Click to expand...

I assume you mean April 2008, not 2004.
Her last break in continuous residency was before July 2004, so counting 5 years from then would make her eligible July 2009, but she can apply up to 90 days early (April 2009).
But to answer your question, you can't use the time between applying and oath to count towards continuous residency requirement if you don't meet it. In other words, you must meet continuous residency and physical presence requirement up until you file, and you must keep continuous residency until oath.
 
Yes.. its April 2008. (Mistakenly, I wrote April 2004)

I was trying to say that the procedure time from filing to oath ( approximately 5 to 6 months…till November 2009 hopefully) is additional to 5 year continuous residency for her. So, there should be no lack of stay period if, we opt for Mid-April 2008 filing option. By the interview day/ oath (Same day in Newark, NJ) she has additional 5 to 6 months stay in US. So, this time there won't be any problem regarding this matter.
 
Yes, she will have additional 5 to 6 months of continuous residency in US by interview, but she still has to meet continuous residency requirement before applying. If she doesn't meet the requirement at the time of filing, the time between filing and interview won't help her.

Some applicants falsely assume that the time between filing and interview can be credited towards continuous residency requirement if they don't meet it before filing.
 
By deciding the application date in mid-april 2009 itself fulfills all continuous residency requirements.
As her continuous residency status from [mid-july 2004 to mid- july 2009] - 90 days = mid-april 2009.Also she will not be visiting out side US till december 2009. So..no breakage of any residency rule further.
 
Correct, but it doesn't explain USCIS's answer that she must wait 2 year from 2008 to apply. Does it give a reason on her denial letter?
 
Even i am surprised by USCIS's answear. Actually when my wife and her lawyer got final denial during appeal in march 2008, my wife was very upset and politely asked them when can she apply again so one of the IO replied in 2010.
During her denial they explained that year 2002 and 2003 are absolutely not countable as she was most of the time absent from US. In case of her 2004, they told her that as she entered in US on 12th July so, from that date top December 2004 she could not fulfill minimum 6 months residency period [ 162 days stay in US]. So, countable years are 2005,2006 and 2007. appeal hearing was on March 2008 so, they can't consider that year on the ground of 2 months stay (Jan. and Feb .2008 only ).
I assume this is the reason they replied that wait for another 2 years and apply in 2010. But they have made mistake by not counting 2004 year's 162 days stay for future application answer.
By considering that she is definitely eligible in mid-april,2009.
 
The requirement is for 5 years of continuous residency, not continuous residency in the last 5 calendar years. How the USCIS came to the latter conclusion in your wife's case is beyond me.
 
Even I am thinking this explanation since last march. How come any responsible officer gives such answer even though they are really expert in their rules and regulations?

The accompanying lawyer also had not replied back to that IO regarding his mistake in calculation. He must be dumb or clueless at that particular moment because of denial. But lawyers are professional people so they should be alert and immediate responsive after all they are there to defend their clients in such complex cases.

What do you suggest, whether a help of lawyer is needed in this Re-application process or it will be smooth this time?
 
To me it's obvious she is eligible to apply up to 90 days before July 2009, since she has reestablished continuous residency ties since her return in July 2004.
 
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