Continues Residency - how my case might the evaluated?

[bahsan 0]

Hi All,

I have a question about continuous residency requirement- 

I received green card in December 2015. And from that time to July 2017 I was working in Canada, and visited USA regularly.

During that time I didn't stay in USA more than 3 weeks at a time and most of my visit to Canada was for for 30/40 days except couple for 150 days.

Now, USCIS rules are not very straight forward for breaking continuous residency , where it does say absence of more than 6 month ( 180 days) will break  continuous residency and it is also mentioned in policy guidelines that - officer may also consider multiple short absence to determine continuous residency. 

 

wanted to ask you guys if anyone has experience for similar situation and/or some advice when I should be applying for citizenship  [ p.s. 3 year rule applies to me]

 

Thank you .. 

 

 

 

 

[Crazy Cat 39,206]

There is good info at: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

 

Edited January 9, 2019 by missileman

[bahsan 0]

Right.. but  my question is more related to how the short visit [ multiple absence less than 6 months] will affect my application?

Has anyone went through similar situation and how was the experience.?

[Brian&Larissa 73]

You might want to read this:  https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/continuous-residence-and-physical-presence-requirements-naturalization

It is the physical presence piece:  

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)).

 

Exceptions do apply..see the page, but I think this will give the answer you are looking for.

[EM_Vandaveer 2,368]

Were you even in the US for the majority of the time that you had your GC? If you are applying based on the 3-year rule then you need to show 18 months at least that you were physically inside the US in the previous 3 years. Can you do that?

[HonoraryCitizen 179]

41 minutes ago, bahsan said:

Hi All,

I have a question about continuous residency requirement- 

I received green card in December 2015. And from that time to July 2017 I was working in Canada, and visited USA regularly.

During that time I didn't stay in USA more than 3 weeks at a time and most of my visit to Canada was for for 30/40 days except couple for 150 days.

Now, USCIS rules are not very straight forward for breaking continuous residency , where it does say absence of more than 6 month ( 180 days) will break  continuous residency and it is also mentioned in policy guidelines that - officer may also consider multiple short absence to determine continuous residency. 

 

wanted to ask you guys if anyone has experience for similar situation and/or some advice when I should be applying for citizenship  [ p.s. 3 year rule applies to me]

 

Thank you .. 

 

 

 

 

 Any way you try to slice or dice it, most if not all USCIS officers will say you broke continuous residence. In addition to what @missileman has posted, determining breaks in continuous residence is a judgment call. To any reasonable adjudicator, someone was working in Canada (by his own admission) and visiting the USA, with multiple periods outside of 30/40 days and a couple of 150 days (was that correct) absences has broken continuous residence. 

[bahsan 0]

since July 2017 I'm in US, and I do have 18 months of  physical presence .

I am actually worried about what @HonoraryCitizen said, since I spent most of the days between Dec 2015 to July 2017 in Canada and was working there, continuous residency is a question here. I did have Reentry permit, although I think it does not count for continuous residency requirement. 

 

Should I just wait and apply using 2 years 1 day rule ? 

[HonoraryCitizen 179]

10 minutes ago, bahsan said:

since July 2017 I'm in US, and I do have 18 months of  physical presence .

I am actually worried about what @HonoraryCitizen said, since I spent most of the days between Dec 2015 to July 2017 in Canada and was working there, continuous residency is a question here. I did have Reentry permit, although I think it does not count for continuous residency requirement. 

 

Should I just wait and apply using 2 years 1 day rule ? 

If the application money is not much to you, you can apply and hope it gets approved. Probability is low however you only lose the money. Because you had a reentry permit they will not say you abandoned your green card. Note that taking a job outside the USA can also be viewed as abandoning your permanent residentce status unless it’s for a USA company that meets certain criteria. In that case a reentry permit will not save you.

 

Pesonally with all these potential complications and the current unforgiving immigration environment, just use the 2 years plus 1 day rule if you’re married to a citizen or 4 years plus 1 day rule if not married to a citizen.

Edited January 10, 2019 by HonoraryCitizen

[Bruce Herrington 8]

1 hour ago, HonoraryCitizen said:

If the application money is not much to you, you can apply and hope it gets approved. Probability is low however you only lose the money. Because you had a reentry permit they will not say you abandoned your green card. Note that taking a job outside the USA can also be viewed as abandoning your permanent residentce status unless it’s for a USA company that meets certain criteria. In that case a reentry permit will not save you.

 

Pesonally with all these potential complications and the current unforgiving immigration environment, just use the 2 years plus 1 day rule if you’re married to a citizen or 4 years plus 1 day rule if not married to a citizen.

If you are married to a US citizen the last 3 years is all that is involved. Dec 2015-Jan 9th 2016 don't count. I think only 2016 is questionable. I would count the days backwards from Dec 31 2016 that you were in Canada (for any part of the day). On the day of the month you reach 179 days in Canada is the day in 2019 I would file N-400. 

[afrocraft 313]

4 hours ago, HonoraryCitizen said:

 Any way you try to slice or dice it, most if not all USCIS officers will say you broke continuous residence...

Actually, it's not that straightforward.

 

A plain reading of the law suggests that if you didn't spend more than 6 months overseas at a time, you should be fine; after all, Congress only specified that absences of more than 6 months are presumed to break continuity of residence. Then again, USCIS, but not Congress, included language for possible scrutiny of absences of less than 6 months. The problem is that this tension between Congressional intent and administrative exuberance has not been tested in the courts.

 

If OP applies, I recommend including supporting evidence of strong ties to the US during his/her absences, including those that show maintenance of a US residence and active US life (lease + utility bills + health insurance + credit card statements, etc.). More at: http://blog.cyrusmehta.com/2010/07/naturalizing-in-a-flat-world.html 

[SusieQQQ 11,584]

3 weeks in the US followed by 30/40 days at a time in Canada, while working in Canada? That sounds like residing in Canada and visiting the US, not the other way round.  I suspect it’s precisely situations like this that the clause already quoted above was designed for: 

An officer may also review whether an applicant with multiple absences of less than 6 months will be able to satisfy the continuous residence and physical presence requirements. In some cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States

Edited January 10, 2019 by SusieQQQ

[afrocraft 313]

Careful there, @SusieQQQ. That clause is an administrative guidance, not a statutory clause (i.e., not the law). The law only says if you're out for more than 6 months at a time, you may have broken continuity of residence -- and even then you can rebut that presumption with factual evidence of your ties to the US. Less than 6 months you're on firm legal ground, especially if you have evidence that you retained a physical dwelling in the US.

[aaron2020 11,651]

Did you claim Canadian residency on your Canadian tax returns or get provincial health care?

 

[HonoraryCitizen 179]

25 minutes ago, afrocraft said:

Careful there, @SusieQQQ. That clause is an administrative guidance, not a statutory clause (i.e., not the law). 

Why would you take it upon yourself to be the one to test administrative exuberance in court? 

 

2 hours ago, afrocraft said:

Then again, USCIS, but not Congress, included language for possible scrutiny of absences of less than 6 months. The problem is that this tension between Congressional intent and administrative exuberance has not been tested in the courts.

 

 

 

[SusieQQQ 11,584]

1 hour ago, afrocraft said:

Careful there, @SusieQQQ. That clause is an administrative guidance, not a statutory clause (i.e., not the law). The law only says if you're out for more than 6 months at a time, you may have broken continuity of residence -- and even then you can rebut that presumption with factual evidence of your ties to the US. Less than 6 months you're on firm legal ground, especially if you have evidence that you retained a physical dwelling in the US.

Clearly I’m not as well legally versed as you, but it’s in exactly the same USCIS policy manual that says all the other stuff being relied on.

 

hopefully OP keeps us updated with what happens if s/he decides to apply now, legal battles and all that may follow.  Me, I’d play it safe to be sure I’d met the requirement, but then I don’t have an appetite to wait a year for an N400 to be processed only to have to fight policy guidance in court.

Edited January 10, 2019 by SusieQQQ