Denied do to lack of continuity of residence (split)

[helphelp1234 0]

Please help ASAP !!!!!!!!!!!!!!!!

I got LPR on 6 march, 2010 through family immigration.

I lived in the us since then until i got married to Non resident and non citizen of USA person, my husband lived in other country

I left the USA on 07/23/2012 and got married come back to US 1/1/2013 lived here for another 3 moths i had lost my job and in between job looking for one,

since i coudnt find any and my husband was living outside the US so i left USA again but until now i had returned to us every 5months to keep the lawful residency, and every time i stayed in USA 2-3 weeks.

i applied for a naturalization N400 at my 90 day sooner than the 6 march 2015 5th year anniversarry , i send the application on dec 8, 2014 .

got fingerprinted in feb, 2015 , i got my interview in 30 march, 2015 .

which at the time the ooficer told me the decision could not be made at this point and you neeed to wait until you recieve mail.

i passed my english test and civic test,

but at the time of the interview the officer has printed out a page of 3-4 questions wanted me to fill out asking what was my job since 2012 and my trips out side the us , where have i lived during this period of time, who supported me and paid for my expenses, and were i working abroad while i was out of USA ??? which i mentioned i didnt have a job and wasnt working at all , my family supported me.

i recieved the denial decision on 21 april , 2015 due to lack of continiuty of residence i couldnt proof i did mantian my abode in US and was nt employed when i had trip outside the us

in the letter doesnt say when i can re-apply , do i need to start over from the begging and start the clock for another 5 years ???

or i can use a 4years+1 rule or any other rule that shortens the duration of 5 years?????

[belinda63 2,981]

Physical Presence

Applicants are required to show that they were:

• Physically present in the U.S. for thirty months within the five year period before applying, or (see legal basis)
• Physically present in the U.S. for eighteen months within the three year period before applying in the case of qualified spouses of U.S. citizens (see legal basis)

In addition, applicants are required to show they have resided for at least three months immediately preceding the filing of Form N-400 in the USCIS district or state where the applicant claims to have residency (See 8 CFR §316.2(a)(5) & §319.1(a)(5)). source http://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

When you meet the residency requirements above you can reapply for citizenship.

[helphelp1234 0]

Physical Presence

Applicants are required to show that they were:

• Physically present in the U.S. for thirty months within the five year period before applying, or (see legal basis)
• Physically present in the U.S. for eighteen months within the three year period before applying in the case of qualified spouses of U.S. citizens (see legal basis)

In addition, applicants are required to show they have resided for at least three months immediately preceding the filing of Form N-400 in the USCIS district or state where the applicant claims to have residency (See 8 CFR §316.2(a)(5) & §319.1(a)(5)). source http://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

When you meet the residency requirements above you can reapply for citizenship.

thank you for your response ,

all the rules for requirement i studied before i file for N400 ,

I had my physical presence for 30 months since i was employed since 2010 by the erly 2013 ,

I wnt to school during that time , not left usa ofr a long vacation uring that time ,

my extended travel starts 23/07/2012 till 1/1/2013 and continuied every 6 months and

accidently one by mistake falls in to a 181 days stay

for that specific trip i become ineligible , and needed to poorf my residency ,

since this trip way over 6months per say and under 1 year ,

which i could not support that

but my question is about the 4+1 rule ,

which date should i consider for 364 days outside us and taking it at my start clock ???/

[Ontarkie 13,915]

~~Split from older thread, Please start your own thread rather then asking in another thread your question can be missed.~~

[Dave&Roza 748]

thank you for your response ,

all the rules for requirement i studied before i file for N400 ,

I had my physical presence for 30 months since i was employed since 2010 by the erly 2013 ,

I wnt to school during that time , not left usa ofr a long vacation uring that time ,

my extended travel starts 23/07/2012 till 1/1/2013 and continuied every 6 months and

accidently one by mistake falls in to a 181 days stay

for that specific trip i become ineligible , and needed to poorf my residency ,

since this trip way over 6months per say and under 1 year ,

which i could not support that

but my question is about the 4+1 rule ,

which date should i consider for 364 days outside us and taking it at my start clock ???/

You can apply for citizenship when you have no trips outside the US greater than 180 days in a 4 year period. You get credit for all the time in the US up to 364 days. So if you have not had a trip outside the US longer than 180 days since 2013, you can apply in 2017.

I would be more worruied about keeping you GC. What have you done to maintain your ties to the US? You are living outside the US. Your husband is living outside the US. Have you been filing a US tax return? If not, you my already have abandoned your LPR status. You may loose your GC if you file for naturaliztion as you must be IN the US more than out. That means you need 30 months IN the US in the past 5 years. You must list all trips outside the US and they will see that you spend 5 months out and 2-3 weeks in and then 5 months out and 2-3 weeks in. They will give you a notice to appear before an IJ and you will have to PROVE you have maintained your LPR status or you will loose your GC. IMHO, I would wait until you are actually living in the US and meet all the requirement before applying for USC otherrwise you risk loosing your GC.

Dave

Edited April 26, 2015 by Dave&Roza

[JimmyHou 610]

thank you for your response ,

all the rules for requirement i studied before i file for N400 ,

I had my physical presence for 30 months since i was employed since 2010 by the erly 2013 ,

I wnt to school during that time , not left usa ofr a long vacation uring that time ,

my extended travel starts 23/07/2012 till 1/1/2013 and continuied every 6 months and

accidently one by mistake falls in to a 181 days stay

for that specific trip i become ineligible , and needed to poorf my residency ,

since this trip way over 6months per say and under 1 year ,

which i could not support that

but my question is about the 4+1 rule ,

which date should i consider for 364 days outside us and taking it at my start clock ???/

You can apply for citizenship when you have no trips outside the US greater than 180 days in a 4 year period. You get credit for all the time in the US up to 364 days. So if you have not had a trip outside the US longer than 180 days since 2013, you can apply in 2017.

I would be more worruied about keeping you GC. What have you done to maintain your ties to the US? You are living outside the US. Your husband is living outside the US. Have you been filing a US tax return? If not, you my already have abandoned your LPR status. You may loose your GC if you file for naturaliztion as you must be IN the US more than out. That means you need 30 months IN the US in the past 5 years. You must list all trips outside the US and they will see that you spend 5 months out and 2-3 weeks in and then 5 months out and 2-3 weeks in. They will give you a notice to appear before an IJ and you will have to PROVE you have maintained your LPR status or you will loose your GC. IMHO, I would wait until you are actually living in the US and meet all the requirement before applying for USC otherrwise you risk loosing your GC.

Dave

Just one small correction to otherwise good information; the reason for denial was not the 181 day trip, it was the fact that the applicant had clearly broken continuous residency. The USCIS Policy Manual clearly states that trips shorter than six months MAY break continuous residency. So if you spend 10 months of every year abroad and 2 months in the US (returning for 1 month every 5 months) you will still be denied. On the other hand, a trip of 7 months does not automatically mean that your continuous residency has been broken. You may still be approved for citizenship with a 7, 8, or 9 month trip depending in the circumstances.

In this case, the applicant was denied because of the pattern of travel that indicated that he was not living in the US. He would have been denied even if he had no trips over 6 months.

Unfortunately, the 4 year + 1 day rule does not apply because the applicant did not live in the US for one full year before breaking residency. This is a gray area because you can argue about which trip broke residency, but there will be a good chance of denial under the 4 + 1 rule.

The applicant should wait until he has been living in the US for 5 years - 90 days to apply.

[Dave&Roza 748]

Unfortunately, the 4 year + 1 day rule does not apply because the applicant did not live in the US for one full year before breaking residency. This is a gray area because you can argue about which trip broke residency, but there will be a good chance of denial under the 4 + 1 rule.

The applicant should wait until he has been living in the US for 5 years - 90 days to apply.

Correct me if I am wrong, but I thought the 4 year +1 day rule kicks in anything the applicant applies for USC and was denied because they broke their continuous residency requirement. The OP was living in the US for a persiod of more than 1 year--2010 to 2012--when she decided to start living in another country. So she does qualify under the 4 year+1 day rule the way I read it, but she has more issues than just when can she file for citizenship--like keeping her GC. The way I understand the 4 year + 1 day rule is that ALL time in the US up to when the applicant breaks their continuous residency counts as 364 days--that means 3 years counts as 364 dyas, 10 years counts as 364 days. So she gets 364 days of credit towards the time in the US but still must meet all other requirements at the time she files for naturalization.

I agree with you that to be safe she should wait for 5 years just so the USCIS cannot dig up all this travelling she is currently doing.

Dave

[Boiler 43,429]

I also would be more concerned about my GC, OP has not resided in the US since 2012.

[JimmyHou 610]

Correct me if I am wrong, but I thought the 4 year +1 day rule kicks in anything the applicant applies for USC and was denied because they broke their continuous residency requirement. The OP was living in the US for a persiod of more than 1 year--2010 to 2012--when she decided to start living in another country. So she does qualify under the 4 year+1 day rule the way I read it, but she has more issues than just when can she file for citizenship--like keeping her GC. The way I understand the 4 year + 1 day rule is that ALL time in the US up to when the applicant breaks their continuous residency counts as 364 days--that means 3 years counts as 364 dyas, 10 years counts as 364 days. So she gets 364 days of credit towards the time in the US but still must meet all other requirements at the time she files for naturalization.

I agree with you that to be safe she should wait for 5 years just so the USCIS cannot dig up all this travelling she is currently doing.

Dave

My bad. I misread the dates. I thought the applicant became an LPR in late 2012 and left in 2013 (not a full year). I see now that the green card date was actually 2010, so you are right; he can apply 4 years plus 1 day after his move back to the U.S. Thanks for following up.

[helphelp1234 0]

special thanks to Dave and roza , jimmy hou ,

OMG , i am so blessed then i didnt loose my gc , i was so disappointed at the inteview,

thank you really so much for taking time answering me , i couldnt reach out to anyone !!!!!!

i dont know if this situation is the same for most immigrant or not , but it is hard to

make your marriage works, good news is my husband visa is bocming available any day now so this time we are going to move to US

as far as keeping ties to US , i had worked all the time being in USA 2010- 2013, and filed taxes ,

but after i start travels i wasnt working , so i filed taxes but i filed no income .

so i DO get eligible for 3years i gave up and get 364 days credit , for 4years+1 days

but since there is shaky situation of all travels you would recommend to do a full 5 year - 90 days right ?

Question #1 :

I got the decision letter , and that is final , are you saying that i would still be getting a notice to go to court to proof that i havent abondened my GC???

Question #2:

for future, if i dont want to loose my GC , apart from , meeting the physical presence of full 30 months ,

what else should i do?

my husband also moving to us so i would have my immidiate relative in US ,

question #3:

I talked to USCIS and reading rules, saying trip under 6 months , IO can not ask for proof of resisdency and it doesnt break the continiuty ,but over 6 under 1 year trips , even 1 day over ,

applicant need to proof residency depending on the circumtances am i right ???????

question #4:

Now i am afraid of traveling,

after i broke the continiuos residency , i started to live here again since dec 4 , 2014

and have been working and going to file taxes for 2015 , ....

i need to get back though to pack and move to US with my husband,

so for not breaking my continuity , if i want to travel should i consider calendar year 6 months in 6 months out ???

by the end of may 2015 i have been IN the US for 6 months ,

should i consider dec month for the 2014 residency and wait until June 2015 then go back so i complete a 6 month IN ??

[JimmyHou 610]

so i DO get eligible for 3years i gave up and get 364 days credit , for 4years+1 days

but since there is shaky situation of all travels you would recommend to do a full 5 year - 90 days right ?

Are you actually living in the US full time now? Short visits are ok. If you are living in the US, then you can apply 4 years + 1 day from the day you moved back to live here.

Question #1 :

I got the decision letter , and that is final , are you saying that i would still be getting a notice to go to court to proof that i havent abondened my GC???

You don't have to do anything at this point. If USCIS wants to prove that you abandoned your GC then they well take action. This is possible, but not very likely. I wouldn't worry about it if I were you; just make sure you are living in the US now and spending most of your time here... most meaning almost all your time, not 7 months out of every year.

Question #2:

for future, if i dont want to loose my GC , apart from , meeting the physical presence of full 30 months ,

what else should i do?

my husband also moving to us so i would have my immidiate relative in US ,

The green card is for people who want to live in the US. If you live here, you won't lose your green card. Short trips of one or two weeks or even a couple of months are ok, but it all depends on your travel pattern. If for the next 4 years, you spend two months in the US followed by 1 month abroad, followed by 2 months in the US, and so on, you will almost certainly be denied again even though you are spending most of your time in the US.

question #3:

I talked to USCIS and reading rules, saying trip under 6 months , IO can not ask for proof of resisdency and it doesnt break the continiuty ,but over 6 under 1 year trips , even 1 day over ,

applicant need to proof residency depending on the circumtances am i right ???????

This is absolutely wrong. The rules clearly say that trips under 6 months CAN break continuous residency depending on the circumstances of the case. If you keep taking trips of 5 months, there's a good chance you'll be denied again. The IO can definitely bring up residency issues for trips under 6 months. In your case, the IO will almost certainly bring it up because he/she will see the reason for your first denial and will want to make sure that you have been actually living in the US.

question #4:

Now i am afraid of traveling,

You shouldn't be afraid of traveling as long as you don't do anything to endanger your green card; make sure your trips are under 6 months, and perhaps you should avoid long trips altogether until you have been in the US for a while just to build up some ties (you may already have done this, sorry I haven't gone back to read your timeline). Also keep in mind that you don't have to become a citizen. If you want to live somewhere else for 5 months out of every year, just keep your green card and don't apply for citizenship.

after i broke the continiuos residency , i started to live here again since dec 4 , 2014

and have been working and going to file taxes for 2015 , ....

i need to get back though to pack and move to US with my husband,

so for not breaking my continuity , if i want to travel should i consider calendar year 6 months in 6 months out ???

The issue here is when does your 4 years + 1 day start? If you are talking about a short trip of a few weeks, you should be ok and your continuous residency should start counting from December, but if you stay abroad for a few months, you may have to start over. Regarding your GC; I don't know how big the risk is... you haven't been living here long and you're planning yet another trip and you've just been denied for citizenship... there is a risk that you'll be questioned by CBP on your way back. I don't really understand your question about the calendar year... it's got nothing to do with 6 month increments; it's all about actually living here ALL the time with only minor trips. Here's the way I look at it: if you live in the US and take vacations abroad, you'll be approved. If you live abroad and take vacations to the US, you'll be denied. If you aren't sure which of the two cases applies to you, there's a good chance you'll be denied.

by the end of may 2015 i have been IN the US for 6 months ,

should i consider dec month for the 2014 residency and wait until June 2015 then go back so i complete a 6 month IN ??

I don't know that it matters at all... I think you are assuming the 6 month mark is a firm rule, which it is not... but generally, the more time you spend in the US, the less likely you'll have a problem re-entering the country.

[helphelp1234 0]

Thanks jimmy hou for answering my questions !!!

I really do appreciate that you take the time coming out here answering questions.

No i am not assuming the 6 months as a firm rule , but i need to take care of some businesses and big move is not as easy coming from abroad , so it will be more than a few weeks .

i am trying the best i can,

Thanks for all point outs , it completely make sense that most time IN the US and it is for people living here , as i was doing the same thing from 2010-end 2012 however poeple status changes during the course of life and i needed to be away and with my husband at that point !!!

you are right i should not have applied for citizenship just kenpt GC!!!

i am not planning to be 2-3-4 months IN and then again couple of months out, per that pattern of the travels are just red flag ,

but now that you explained , 4years +1 rule , i have come up with the another question,

after the denial, applicant get the 4+1 rule credit, so are they needed to be IN the US constatnly except for the few weeks vacations??

they cant be away for 2-3- months ??? if so they need to start over ????

[JimmyHou 610]

Thanks jimmy hou for answering my questions !!!

I really do appreciate that you take the time coming out here answering questions.

No i am not assuming the 6 months as a firm rule , but i need to take care of some businesses and big move is not as easy coming from abroad , so it will be more than a few weeks .

i am trying the best i can,

Thanks for all point outs , it completely make sense that most time IN the US and it is for people living here , as i was doing the same thing from 2010-end 2012 however poeple status changes during the course of life and i needed to be away and with my husband at that point !!!

you are right i should not have applied for citizenship just kenpt GC!!!

i am not planning to be 2-3-4 months IN and then again couple of months out, per that pattern of the travels are just red flag ,

but now that you explained , 4years +1 rule , i have come up with the another question,

after the denial, applicant get the 4+1 rule credit, so are they needed to be IN the US constatnly except for the few weeks vacations??

they cant be away for 2-3- months ??? if so they need to start over ????

A trip of 2 or 3 months won't automatically start your clock over... but the problem is that you recently moved back to live in the US. So if you came back here in December and then you leave for 2 months in May, your interviewer could decide that you actually moved back permanently in July 2015 and he may start counting then.

This isn't really unreasonable since you really are still wrapping things up abroad and it's not really clear when you can say that you finally moved to the U.S.

On the other hand, if you go on a 2 month or even 5 month trip in 2017, that won't be a problem because it will be clear by then that you have been living in the US.

To avoid the confusion, just apply under the 5 year rule or start counting your 4 + 1 rule from when you come back this summer. This may not be necessary, but it's safer and will give you peace of mind while you're waiting for your interview. Unless there's an urgent reason, a few more months won't make much of a difference.

Edited April 29, 2015 by JimmyHou

[helphelp1234 0]

A trip of 2 or 3 months won't automatically start your clock over... but the problem is that you recently moved back to live in the US. So if you came back here in December and then you leave for 2 months in May, your interviewer could decide that you actually moved back permanently in July 2015 and he may start counting then.

This isn't really unreasonable since you really are still wrapping things up abroad and it's not really clear when you can say that you finally moved to the U.S.

On the other hand, if you go on a 2 month or even 5 month trip in 2017, that won't be a problem because it will be clear by then that you have been living in the US.

To avoid the confusion, just apply under the 5 year rule or start counting your 4 + 1 rule from when you come back this summer. This may not be necessary, but it's safer and will give you peace of mind while you're waiting for your interview. Unless there's an urgent reason, a few more months won't make much of a difference.

Hey ,

I was reading more on my case , looking for affidavit of residency letter from my landlord ,

got to review the affivadivit of support letter the other day !!

(since i am the petitioner for my husband case which is still in line for getting his visa at an embassey)

and I am sponsering my husband along with a joint sponser) ,

now it gets my attention to the point that ,

"sponser domicile need to be USA in order to apply for a petition on behalf of the family member (spouse),

should i be worried that my husband case is going to be suspended ???

wil his case be denied >???

[helphelp1234 0]

also , if i want to ask my lanlord from all previous addresses to write a letter to prrof of residency ,

does it need to be notarized ? or just a written statement , dated and signed would be ok ???