Permanent Resident with greater than 6 mo., but less than 1 year disruption question

[Brentzilla 0]

Hi guys, quick question that I couldn't find a satisfactory answer to in uscis.gov's documentation:

I've been a Permanent Resident since 1993, and during that time I was never abroad for more than than 6 months. Until 2013, that is, during which time I attended school abroad for just under 1 year. I've been back in the states since 2014 and now I'm wanting to apply for naturalization.

The law states that I must have maintained "5 years as a Permanent Resident without leaving the United States for trips of 6 months or more."

I don't know whether this refers to the 5 years immediately preceding my application for naturalization, or if my earlier 20-year streak will satisfy this requirement. If it's the former, I'm afraid that I no longer satisfy the Continuous Residence and Physical Presence Requirements to become naturalized.

Can anyone clarify for me how this affects my eligibility?

Thank you!

[zap0paz 0]

It impacts your eligibility unless you can prove otherwise. Did you keep your ties with US by either renting apartment, paying bills, or having an immediate family member living in the US? If yes, you may be able to prove otherwise. Also, I am not very sure how studying abroad for just under 1 year will impact that proof set above. Anyways, good luck.

[Dave&Roza 748]

Hi guys, quick question that I couldn't find a satisfactory answer to in uscis.gov's documentation:

I've been a Permanent Resident since 1993, and during that time I was never abroad for more than than 6 months. Until 2013, that is, during which time I attended school abroad for just under 1 year. I've been back in the states since 2014 and now I'm wanting to apply for naturalization.

The law states that I must have maintained "5 years as a Permanent Resident without leaving the United States for trips of 6 months or more."

I don't know whether this refers to the 5 years immediately preceding my application for naturalization, or if my earlier 20-year streak will satisfy this requirement. If it's the former, I'm afraid that I no longer satisfy the Continuous Residence and Physical Presence Requirements to become naturalized.

Can anyone clarify for me how this affects my eligibility?

Thank you!

It all revolves around "continuous residence" and how the USCIS defines that. Typically any absence from the US greater than 6 months disrupts your continuous residency. In you case, you will have to prove that while away from the US to attend college that you maintained your residence within the US. If you fail to do that to the USCIS' satisfaction, you will be on the 364 days rule which states that all the previous time spent in the US counts 364 days towards your residency requirement. This means that you get credit for 1 day less than a year towards the 5 years as a LPR requirement before you can file for naturalization.

Based on your time line, you will be eligible for naturalization in 2018 or 4 years plus 1 day after returning to the US in 2014. The only way to shorten that is to prove that you maintained your residence in the US while attending school--this is not going to be easy.

Dave

[Brentzilla 0]

It impacts your eligibility unless you can prove otherwise. Did you keep your ties with US by either renting apartment, paying bills, or having an immediate family member living in the US? If yes, you may be able to prove otherwise. Also, I am not very sure how studying abroad for just under 1 year will impact that proof set above. Anyways, good luck.

I did have immediate family (parents and sister) remain in the US while I was abroad. How would I go about proving this? And do you know if this is typically considered sufficient for establishing continuous residence?

It all revolves around "continuous residence" and how the USCIS defines that. Typically any absence from the US greater than 6 months disrupts your continuous residency. In you case, you will have to prove that while away from the US to attend college that you maintained your residence within the US. If you fail to do that to the USCIS' satisfaction, you will be on the 364 days rule which states that all the previous time spent in the US counts 364 days towards your residency requirement. This means that you get credit for 1 day less than a year towards the 5 years as a LPR requirement before you can file for naturalization.

Based on your time line, you will be eligible for naturalization in 2018 or 4 years plus 1 day after returning to the US in 2014. The only way to shorten that is to prove that you maintained your residence in the US while attending school--this is not going to be easy.

Dave

It sounds like you're saying that the "continuous period" must be the 5 years immediately preceding naturalization. That is to say that the preceding 20 years wouldn't count in this case. Is that correct?

Here's my question now: in order to determine whether I'm still eligible according to the USCIS, would I need to fork out the naturalization fee (~$800), go through the rest of the application process, and then wait to hear back from someone from that department, or can I establish the answer to this question sooner/cheaper/easier?

[zap0paz 0]

I did have immediate family (parents and sister) remain in the US while I was abroad. How would I go about proving this? And do you know if this is typically considered sufficient for establishing continuous residence?

It sounds like you're saying that the "continuous period" must be the 5 years immediately preceding naturalization. That is to say that the preceding 20 years wouldn't count in this case. Is that correct?

Here's my question now: in order to determine whether I'm still eligible according to the USCIS, would I need to fork out the naturalization fee (~$800), go through the rest of the application process, and then wait to hear back from someone from that department, or can I establish the answer to this question sooner/cheaper/easier?

1. You may brainstorm to produce evidence but I think they would take IRS tax forms, and you may also get entry/exit records for parents and sister (https://foiaonline.regulations.gov/foia/action/public/request/createRequest)

2. Unless you filed re-entry permit, it is unfortunate but I think law dictates that the proceeding period falls if you disrupt your continuous residency

3. Contact an immigration attorney (the least expensive) and research yourself

[Dave&Roza 748]

2. Unless you filed re-entry permit, it is unfortunate but I think law dictates that the proceeding period falls if you disrupt your continuous residency

A re-entry permit does nothing for continuous residency. All it does is preserve a person's LPR status. Here is the statute. The OP may want to look at the part about being a student and if he is financially dependent on someone living in the US while at school.

§ Sec. 316.5 Residence in the United States.

(a) General. Unless otherwise specified, for purposes of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.

(b) Residences in specific cases.

(1) Military personnel. For applicants who are serving in the Armed Forces of the United States but who do not qualify for naturalization under part 328 of this chapter, the applicant's residence shall be:

(i) The State or Service District where the applicant is physically present for at least three months, immediately preceding the filing of an application for naturalization, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act;

(ii) The location of the residence of the applicant's spouse and/or minor child(ren); or

(iii) The applicant's home of record as declared to the Armed Forces at the time of enlistment and as currently reflected in the applicant's military personnel file.

(2) Students. An applicant who is attending an educational institution in a State or Service District other than the applicant's home residence may apply for naturalization:

(i) Where that institution is located; or

(ii) In the State of the applicant's home residence if the applicant can establish that he or she is financially dependent upon his or her parents at the time that the application is filed and during the naturalization process.

(3) Commuter aliens. An applicant who is a commuter alien, as described in § 211.5 of this chapter, must establish a principal dwelling place in the United States with the intention of permanently residing there, and must thereafter acquire the requisite period of residence before eligibility for naturalization may be established. Accordingly, a commuter resident alien may not apply for naturalization until he or she has actually taken up permanent residence in the United States and until such residence has continued for the required statutory period. Such an applicant bears the burden of providing evidence to that effect.

(4) Residence in multiple states. If an applicant claims residence in more than one State, the residence for purposes of this part shall be determined by reference to the location from which the annual federal income tax returns have been and are being filed.

(5) Residence during absences of less than one year.

(i) An applicant's residence during any absence of less than one year shall continue to be the State or Service district where the applicant last resided at the time of the applicant's departure abroad.

(ii) Return to the United States. If, upon returning to the United States, an applicant returns to the State or Service district where the applicant last resided, the applicant will have complied with the continuous residence requirement specified in § 316.2(a)(5) when at least three months have elapsed, including any part of the applicant's absence, from the date on which the applicant first established that residence. If the applicant establishes residence in a State or Service district other than the one in which he or she last resided, the applicant must complete three months at that new residence to be eligible for naturalization.

(6) Spouse of military personnel. Pursuant to section 319(e) of the Act, any period of time the spouse of a United States citizen resides abroad will be treated as residence in any State or district of the United states for purposes of naturalization under section 316(a) or 319(a) of the Act if, during the period of time abroad, the applicant establishes that he or she was: (Paragraph (b)(6) added effective 11/28/11, 76 FR 53764)

(i) The spouse of a member of the Armed Forces;

(ii) Authorized to accompany and reside abroad with that member of the Armed Forces pursuant to the member's official orders; and

(iii) Accompanying and residing abroad with that member of the Armed Forces in martial union in accordance with 8 CFR 319.1(b).

© Disruption of continuity of residence

(1) Absence from the United States.

(i) For continuous periods of between six (6) months and one (1) 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 § 316.2(a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. 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. The types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence in the United States during an extended absence include, but are not limited to, evidence that during the absence: (Amended 9/24/93; 58 FR 49913)

(A) The applicant did not terminate his or her employment in the United States;

(B) The applicant's immediate family remained in the United States;

© The applicant retained full access to his or her United States abode; or

(D) The applicant did not obtain employment while abroad.

(ii) For period in excess of one (1) year. Unless an applicant applies for benefits in accordance with § 316.5(d), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required under § 316.2(a)(3) and (a)(5) shall disrupt the continuity of the applicant's residence. An applicant described in this paragraph who must satisfy a five-year statutory residence period 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 described in this paragraph who must satisfy a three-year statutory residence period may file an application for naturalization two years and one day following the da te of the applicant's return to the United States to resume permanent residence. (Amended 9/24/93; 58 FR 49913)

(2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident. An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States. (Revised 2/3/95; 60 FR 6647)

(3) Removal and return. Any departure from the United States while under an order of removal (including previously issued orders of exclusion or deportation) terminates the applicant's status as a lawful permanent resident and, therefore, disrupts the continuity of residence for purposes of this part. (Revised effective 4/1/97; 62 FR 10312)

(4) Readmission after a deferred inspection or exclusion proceeding. An applicant who has been readmitted as a lawful permanent resident after a deferred inspection or by the immigration judge during exclusion proceedings shall satisfy the residence and physical presence requirements under Sec. 316.2(a)(3), (a)(4), (a)(5), and (a)(6) in the same manner as any other applicant for naturalization.

(d) Application for benefits with respect to absences; appeal.

(1) Preservation of residence under Section 316(b) of the Act.

(i) An application for the residence benefits under section 316(b) of the Act to cover an absence from the United States for a continuous period of one year or more shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's employment commences, but must be filed before the applicant has been absent from the United States for a continuous period of one year.

(ii) An approval of Form N-470 under Section 316(b) of the Act shall cover the spouse and dependent unmarried sons and daughters of the applicant who are residing abroad as members of the applicant's household during the period covered by the application. The notice of approval, Form N-472, shall identify the family members so covered.

(iii) An applicant whose Form N-470 application under Section 316(b) of the Act has been approved, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, raises a rebuttable presumption that the applicant has relinquished a claim of having retained lawful permanent resident status while abroad. The applicant's family members who were covered under Section 316(b) of the Act and who were listed on the applicant's Form N-472 will also be subject to the rebuttable presumption that they have relinquished their claims to lawful permanent resident status.

(2) Preservation of residence under Section 317 of the Act. An application for the residence and physical presence benefits of Section 317 of the Act to cover any absences from the United States, whether before or after December 24, 1952, shall be submitted to the Service on Form N-470 with the required fee, in accordance with the form's instructions. The application may be filed either before or after the applicant's absence from the United States or the performance of the functions or services described in Section 317 of the Act.

(3) Approval, denial, and appeal. The applicant under paragraphs (d)(1) or (d)(2) of this section shall be notified of the Service's disposition of the application on Form N-472. If the application is denied, the Service shall specify the reasons for the denial, and shall inform the applicant of the right to appeal in accordance with the provisions of part 103 of this chapter.

§ Sec. 316.6 - 316.9 [Reserved].

[zap0paz 0]

A re-entry permit does nothing for continuous residency. All it does is preserve a person's LPR status. Here is the statute. The OP may want to look at the part about being a student and if he is financially dependent on someone living in the US while at school.

Read page 22 -

http://www.uscis.gov/sites/default/files/files/article/chapter4.pdf

What if I was outside the United States for 1 year or longer? In almost all cases, if you leave the United States for 1 year or more, you have disrupted your continuous residence. This is true even if you have a Re-entry Permit. If you leave the country for 1 year or longer, you may be eligible to re-enter as a Permanent Resident if you have a Re-entry Permit. But none of the time you were in the United States before you left the country counts toward your time in continuous residence. If you return within 2 years, some of your time out of the country does count. In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your continuous residence requirement.

So, if he had re-entry permit and returned within 2 years of obtaining it, he would have opportunity to count 364 days toward the continuous residency requirement but I guess you cannot obtain it while abroad.

[Dave&Roza 748]

Read page 22 -

http://www.uscis.gov/sites/default/files/files/article/chapter4.pdf

What if I was outside the United States for 1 year or longer? In almost all cases, if you leave the United States for 1 year or more, you have disrupted your continuous residence. This is true even if you have a Re-entry Permit. If you leave the country for 1 year or longer, you may be eligible to re-enter as a Permanent Resident if you have a Re-entry Permit. But none of the time you were in the United States before you left the country counts toward your time in continuous residence. If you return within 2 years, some of your time out of the country does count. In fact, the last 364 days of your time out of the country (1 year minus 1 day) counts toward meeting your continuous residence requirement.

So, if he had re-entry permit and returned within 2 years of obtaining it, he would have opportunity to count 364 days toward the continuous residency requirement but I guess you cannot obtain it while abroad.

He can count the 20 years in the US as 364 days unless he is able to show the USCIS that as a student he did not break his continuous residency when he was outside the US for more than 6 months--re-entry permit or no re-entry permit. OP was outside the US for a period between 6 months and 1 year, so he did not need a re-entry permit. He broke his continuous residency per the reference you supplied. If he cannot show that he now has 4 years plus 1 day after he returned to the US to wait before he is eligible to file for USC. This does assume he does not spend more than 6 months outside the US at one time again.

OP: Can the do this without filing the N-400 and paying the application fee--I doubt it. So it is up to you as to whether you want to spend the money to see if you can prove you did not break your continuous residency or wait until you are eligible after spending another 4 years in the US with no long trips.

Dave

Edited January 27, 2016 by Dave&Roza