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Marriage base naturalization petition

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I am permanent resident based on marriage base petition. I came here in US on 12/04/2011. I have applied for Naturalization on 02/15/2015. I have following trip after I became permanent resident:

Left >> Return >> Days outside US
04/09/2015 >> 08/04/2015 >> 117
01/08/2013 >> 08/28/2013 >> 232
02/08/2012 >> 12/17/2012 >> 313

I verified eligibility using USCIS Check List and found eligible to apply for Naturalization as I have been in US for last 19 months on the date of filing (On the basis of 18 months in last 3 years).

But officer decline my case during interview citing I didn't lived here in first two years and give me option to withdraw my application.

Please let me know whether I was eligible or not at the time of filing?

When can I apply again.

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You need to have "continuous residence" for the last 3 years. A trip of 6 months usually breaks continuous residence (although since it was between 6 months and 1 year, it is possible to overcome the presumption that you broke continuous residence; I'm guessing that you weren't able to do this).

At the time you filed, it was 2 years and 2 months after you returned from your trip. There is confusion in the law about how long you have to wait after your break in continuous residence before you can file for naturalization. There is the "2 year + 1 day" rule (and analogously, "4 year + 1 day" rule), where you can file 2 years + 1 day after returning from the trip, but that rule seems to be only for peole who've had an absence of more than 1 year. However, there are people who disagree and think that it also applies to people with absence between 6 months and 1 year. If the 2 year + 1 day rule applies, then you should be eligible for naturalization at the time you filed.

If the 2 year + 1 day rule doesn't apply to you, then it's still not clear when's the earliest you can file. Is it 2 years + 3 months, 2 years + 6 months, or 2 year + 9 months (3 year - 90 days)? The confusion is on when continuous residence starts counting again; is it on the day of the return? or can the last part of the trip before the return count too? By the time you hit 3 years minus 90 days after your return, I think there is no doubt that you can file.

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I am permanent resident based on marriage base petition. I came here in US on 12/04/2011. I have applied for Naturalization on 02/15/2015. I have following trip after I became permanent resident:

Left >> Return >> Days outside US

04/09/2015 >> 08/04/2015 >> 117

01/08/2013 >> 08/28/2013 >> 232

02/08/2012 >> 12/17/2012 >> 313

I verified eligibility using USCIS Check List and found eligible to apply for Naturalization as I have been in US for last 19 months on the date of filing (On the basis of 18 months in last 3 years).

But officer decline my case during interview citing I didn't lived here in first two years and give me option to withdraw my application.

Please let me know whether I was eligible or not at the time of filing?

When can I apply again.

Hi,

You are not eligible for US citizenship. You do not meet the physical presence requirement.

Here is the law; http://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

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)
Edited by aaron2020

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Here is your problem.

You immigrated here as the spouse of a US citizen and spent 2 months here, then you left for over 10 months, then you came back for 3 weeks, and then left again for 9 months. It's would be hard to say that you made the US your regular home during this whole period. You were living abroad and just making brief visits to the US.

Your safest route to US citizenship is to wait August 29, 2016, to apply again so the two "trips" from 2012 and 2013 will no longer be considered.

Best of luck

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I don't understand some people. I know sometimes we all miss home and we wants to go back and visit our family. But in this case why would you be taking multiple trips when you perfectly know you want to apply for citizenship. Home land security wants to know what everyone move is( by paying taxes.good moral character and they want to know what's you been up to). So you can't be jumping in and jumping out and be thinking you are eligible for citizenship. My friend you have to continue your residence for some time to be eligible.take care.


FILED UNDER THREE YEARS RULE (319A)

MAILED N400 - APRIL 17 2015

CHECK CASHED - APRIL 28 2015

RECEIVED NOA IN THE MAIL - MAY-01-2015 (PRIORITY DATE APRIL-23-2015) WHAT THE HECK THAT IS

NOA FOR BIOMETRICS RECEIVED MAY-15-2015 - APPOINTMENT MAY-29-2015 ( EARLY BIOMETRICS MAY-19-2015)

TESTING AND INTERVIEW - MAY-21-2015

INTERVIEW DATE- 07-24-2015 :goofy:

OATH CEREMONY MAILED ON- 08-03-2015 :goofy: :idea: :goofy: :idea: :idea:

OATH CEREMONY- 08-18-2015

I-130 JOURNEY FOR MOM

I-130 MAILED- MARCH-4-2016

I-130 NOA RECEIVED -MARCH 19-2016

I-130 APPROVED- APRIL-26-2016(WOW THAT WAS REALLY QUICK ANYWAY THANKS USCIS TEXAS) (L)

I-130 NOA2 RECEIVED IN MAIL-APRIL30-2016

I-130 SENT TO DEPARTMENT OF STATE - APRIL-29-2016

I-130 RECEIVED NVC-MAY-6-2016

l-130 CASE ASSIGNED- MAY 23-2016

I-130 PAYED AOS FEE- JUNE 1-2016 ($120)

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Hi,

You are not eligible for US citizenship. You do not meet the physical presence requirement.

Here is the law; http://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

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)

The OP has no problem with physical presence. The issue is continuous residence.

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The OP has no problem with physical presence. The issue is continuous residence.

Hi All,

Thank you very much for your response and guidance. I would like to add here that while I was out of country, I filled tax return and reported foreign income every year.

The OP has no problem with physical presence. The issue is continuous residence.

Hi All,

Thank you very much for your response and guidance. I would like to add here that while I was out of country, I filled tax return and reported foreign income every year.

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You need to have "continuous residence" for the last 3 years. A trip of 6 months usually breaks continuous residence (although since it was between 6 months and 1 year, it is possible to overcome the presumption that you broke continuous residence; I'm guessing that you weren't able to do this).

At the time you filed, it was 2 years and 2 months after you returned from your trip. There is confusion in the law about how long you have to wait after your break in continuous residence before you can file for naturalization. There is the "2 year + 1 day" rule (and analogously, "4 year + 1 day" rule), where you can file 2 years + 1 day after returning from the trip, but that rule seems to be only for peole who've had an absence of more than 1 year. However, there are people who disagree and think that it also applies to people with absence between 6 months and 1 year. If the 2 year + 1 day rule applies, then you should be eligible for naturalization at the time you filed.

If the 2 year + 1 day rule doesn't apply to you, then it's still not clear when's the earliest you can file. Is it 2 years + 3 months, 2 years + 6 months, or 2 year + 9 months (3 year - 90 days)? The confusion is on when continuous residence starts counting again; is it on the day of the return? or can the last part of the trip before the return count too? By the time you hit 3 years minus 90 days after your return, I think there is no doubt that you can file.

Hi All,

Thank you very much for your response and guidance. I would like to add here that while I was out of country, I filled tax return and reported foreign income every year.

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It doesn't matter you filed tax or not in this case. You don't have continuos residence.

Edited by NancyNguyen

N400

12/06/2014: Package filed

12/31/2014: Fingerprinted

02/06/2015: In-Line for Interview

04/15/2015: Passed Interview

05/05/2015: Oath letter was sent

05/22/2015: Oath Ceremony

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