Citizenship application denied

[Marcus73 0]

I am a green card holder and I applied for citizenship last year as spouse of an American citizen. I have recently had the interview and my application was denied on the basis that, in 2015 as a green card holder, i left the USA for 186 days (the max allowed is 180). 

However, the USCIS.gov page states:

"Resided continuously in the U.S. for three years in the case of qualified spouses of U.S. citizens"

I have resided continuously for 3 years and 6 months. 

Should I appeal their decision? What are my options now?

 

[gregcrs2 1,777]

• Continuous Residence and Physical Presence Requirements for Naturalization

  Continuous Residence

  Applicants are required to show that they have:

  ·        Resided continuously in the U.S. for five years before applying, (see legal basis), or

  ·        Resided continuously in the U.S. for three years in the case of qualified spouses of U.S. citizens, (see legal basis) 

  “Continuous residence” means that the applicant has maintained residence within the United States for the required period of time shown above.

  Extended absences outside of the U.S. may disrupt an applicant’s continuous residence.

  ·        Absences of more than six months but less than one year may disrupt an applicant’s continuous residence unless the applicant can prove otherwise, (see legal basis, see policy manual)

  ·        Absences in excess of one year or more may disrupt an applicant’s continuous residence, (see legal basis, see policy manual)

  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)).

   

[SusieQQQ 11,584]

36 minutes ago, Marcus73 said:

I am a green card holder and I applied for citizenship last year as spouse of an American citizen. I have recently had the interview and my application was denied on the basis that, in 2015 as a green card holder, i left the USA for 186 days (the max allowed is 180). 

However, the USCIS.gov page states:

"Resided continuously in the U.S. for three years in the case of qualified spouses of U.S. citizens"

I have resided continuously for 3 years and 6 months. 

Should I appeal their decision? What are my options now?

 

as gregcrs2 posted above, an absence of >180 days is presumed to break continuous residence (unless you had proof otherwise as per the manual). You had one of those  so the 3-year clock begins again the day you returned after that.  You haven't given any real dates so it's hard to know exactly what you mean. Have you had an unbroken (no absence longer than 6 months) continuous residence since you returned after that absence, before you filed N400? Or are you including that 186 days in your continuous residence?

Edited July 8, 2019 by SusieQQQ

[Marcus73 0]

i came back from my 186 days absence in December 2015, I applied for citizenship in July 2018. I had my interview in July 2019. I was continuously in the country for 30 completed months before i applied for citizenship. I've seen that decisions can be appealed but it sounds unfair to me that i have to pay $ 605 of petition fee for a decision that was wrongly taken

[gregcrs2 1,777]

8 minutes ago, Marcus73 said:

i came back from my 186 days absence in December 2015, I applied for citizenship in July 2018. I had my interview in July 2019. I was continuously in the country for 30 completed months before i applied for citizenship. I've seen that decisions can be appealed but it sounds unfair to me that i have to pay $ 605 of petition fee for a decision that was wrongly taken

The counting error was yours.  According to what you said, you were absent for 186 continuous days during your 3 year period of eligibility.  Had you applied in December 2018, all would have been ok.

Edited July 8, 2019 by gregcrs2

[Marcus73 0]

maybe i am still counting incorrectly, but the statement says: 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)

I was physically present for the whole 2016, 2017 and 6 months of 2018 before i applied, i.e. 30 months within the three year period (June 2015-June 2018) before applying. Or is there a separate requirement that I did not meet?

[Going through 5,668]

25 minutes ago, Marcus73 said:

i came back from my 186 days absence in December 2015, I applied for citizenship in July 2018. I had my interview in July 2019. I was continuously in the country for 30 completed months before i applied for citizenship. I've seen that decisions can be appealed but it sounds unfair to me that i have to pay $ 605 of petition fee for a decision that was wrongly taken

 

During your interview, did the IO ask any questions about the 6 month absence?  The break in continuous residence is presumed for stays abroad of more than 180 days, however it can be determined to NOT have broken residence depending on the following considerations (taken from USCIS policy manual):

 

An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence. 

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence: ^[12] 

• The applicant did not terminate his or her employment in the United States or obtain employment while abroad.

• The applicant’s immediate family remained in the United States.

• The applicant retained full access to his or her United States abode.

 

6 minutes ago, Marcus73 said:

maybe i am still counting incorrectly, but the statement says: 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)

I was physically present for the whole 2016, 2017 and 6 months of 2018 before i applied, i.e. 30 months within the three year period (June 2015-June 2018) before applying. Or is there a separate requirement that I did not meet?

Physical presence and continuous residence are two separate requirements.

 

Can you post a photo of the denial letter for members to be able to reference what it says exactly?

Edited July 8, 2019 by Going through

[gregcrs2 1,777]

3 minutes ago, Marcus73 said:

maybe i am still counting incorrectly, but the statement says: 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)

I was physically present for the whole 2016, 2017 and 6 months of 2018 before i applied, i.e. 30 months within the three year period (June 2015-June 2018) before applying. Or is there a separate requirement that I did not meet?

 

 

Extended absences outside of the U.S. may disrupt an applicant’s continuous residence.

·        Absences of more than six months but less than one year may disrupt an applicant’s continuous residence unless the applicant can prove otherwise, (see legal basis, see policy manual) 

[USS_Voyager 1,971]

18 minutes ago, Marcus73 said:

I was physically present for the whole 2016, 2017 and 6 months of 2018 before i applied, i.e. 30 months within the three year period (June 2015-June 2018) before applying. Or is there a separate requirement that I did not meet?

You still don't get it. There are two separate requirements:

 

1) Physically present for 18 months prior to the date you file. You meet this requirement.

2) Continuous residence for 3 years prior to the date you file. It is presume that continuous residence is broken with absence of more than 6 months but less than 1 year, unless the applicant can prove otherwise. This is your problem right here.

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence: 

-The applicant did not terminate his or her employment in the United States or obtain employment while abroad.

-The applicant’s immediate family remained in the United States.

-The applicant retained full access to his or her United States abode.

 

So either you do that, or reapply, you should be good now. 

 

All of this could have been avoided had you waited until December to apply.

Edited July 8, 2019 by USS_Voyager

[gregcrs2 1,777]

OP, what were the exact dates you were out of country?

[arken 4,197]

27 minutes ago, Marcus73 said:

 

I was physically present for the whole 2016, 2017 and 6 months of 2018 before i applied, i.e. 30 months within the three year period (June 2015-June 2018) before applying.

You passed the physical presence requirement.

 

Quote

Or is there a separate requirement that I did not meet?

You failed the continuous residency requirement. If asked, you should have shown evidences that you maintained residency in the US during those 183 days if you had. Proofs could include lease papers, tax returns, spouse living in the US at the time and other items. 

 

If you don’t have any of those, rather than appealing, reapplying for it might be easiest as you will have satisfied the continuous residency in past three years.

Edited July 8, 2019 by arken

[Marcus73 0]

That makes sense. I did file my tax with the IRS for 2015 and have evidence that my spouse was living here. Unfortunately, I was not asked to provide this type of evidence. The appointment letter only asked for passport, green card, spouse birth certificate and marriage certificate. What puzzles me is that there is no option to come back with the certifications they need. It's either yes or no at the interview. The "may disrupt continuous residence" statement allows an officer to enforce it or not. It doesn't say "will disrupt". But the law is down to the officer who interprets it as it fits better for him nor me.

[Allaboutwaiting 2,500]

Did you work during any of those 186 days you were back in your country?

[Going through 5,668]

52 minutes ago, Marcus73 said:

Unfortunately, I was not asked to provide this type of evidence. The appointment letter only asked for passport, green card, spouse birth certificate and marriage certificate.

They wouldn't have mentioned it on the appointment letter---those  letters are generic and not focused on different aspects that may arise during the interview/each personal case.

 

If the IO even slightly questioned the 180+ days abroad during your interview, then that would have been your opportunity to provide evidence/any verbal statements regarding the presumption of broken continuous residence.  The IO doesn't need to directly ask for the evidence, either---the onus is on you to prove you have met the requirements for the N400 approval.

 

If your denial was solely based on breaking the continuous residence requirement, and you feel you have not broken it---and can PROVE it with documented evidence---you can always file for a Motion to Reopen and try your luck with that (MTR is different than an appeal, and is based on new evidence you provide to meet your claims that wasn't presented before)...hard to say how successful you'll be, however, without seeing the actual denial letter (I believe I asked if you could post a photo of that before?) and what's specifically outlined in there as to the reasons/if there are any other factors at play.

Edited July 8, 2019 by Going through
grammar and spelling

[AI135 27]

@Marcus73 Sorry to hear the trouble you are in. I am in a similar situation and I have been abroad for about 220 days in 2016-2017 ( 1 trip lasted this long). I had to renew my passport and got hold up there because my dad had health problems. Moreover, I hadn't visited my family for about 7 years since I moved to the US and my mother had died.

My spouse was in the US, we had a lease in our name, joint bank account and credit cards that we paid each month, also we have filed tax returns jointly. I have submitted all of these documents on July 1st when I filed my N-400. I am planning to bring the copies of supporting documents when I go for my interview and hopefully, will be able to explain the situation to the IO.