is early N-400 FILING POSSIBLE ? (merged)

[Badguy 1]

TLDR provided at the bottom.

Hey Guys,

                  Long time lurker here.  I have read plenty of stories on this forum for a long time back when the possibility of living  in the US looked like a mere pipe dream. Well, now that we are done with all the pleasantries lets get to it shall we. This is my current situation. I received my  i-551 ,category f33, in  May of 2011 age 27, 15 ish so years from date of application . I got my Driver License around June of the same year. I was employed for the first time around want to say Feb of 2012 and bought a car shortly after ,first new car. I remained employed until mid 2013 .

 

I  got married to the mother of my child on 2012-2013 ,short trip, can't really remember cause it was a toxic relationship. While married I made the mistake of going back in forth from one country to another.I worked as a contractor for US technology company ,think search engine with a G, and I worked remotely with only minimum local presence. I have always filed taxes ,with exemption of 2011, retained a Vehicle loan and credit cards and mediocre credit score 😭 .Making my continuous residence requirement was for a long time questionable, 3-5 months and a few days length of absences was normal for me . Though in none of my entries to the US was I challenged nor questioned . Always super quick through immigration.

 

In December 2014 ,I returned to my country of origin for Xmas but stayed longer due to my father in-law falling ill and dying in Feb 2015. 11 days after his death, when my  father law's body was cold,my wife at the time asked me for a divorce and full custody of our child. Later she married a family friend lol . I laugh now because of the cliche. Describing the process as nightmare is putting it mildly. After everything was said and done .I came back to the US in early September of 2015 ,so 10-11 months after original departure, and have been here ever since. I remarried in May 2018 to US citizen, also have baby on the way due November of this year ! a girl ! yeih me !. and as of Today I am four (4) years and 10+ days with no travel outside the US whatsoever. Would there be any chance of a N-400 getting approved ? I also read that "The USCIS Policy Manual and 8 CFR § 316.5(c)(1)(ii) state that if an applicant has an absence of 1 year or more, the applicant only needs to wait 4 years and 1 day to apply.14"  is there a possibility of this being my case ?

 

First, let me say if you read all of this I owe you a cookie ,in the very least a gold star sticker.

 

TLDR

So ,now I am four years and 10+ days into my "Continuous Residence" AFTER a 10 to 13 month absence . Would there be any chance of a N-400 getting approved ? I also read that "The USCIS Policy Manual and 8 CFR § 316.5(c)(1)(ii) state that if an applicant has an absence of 1 year or more, the applicant only needs to wait 4 years and 1 day to apply.14"  is there a possibility of this being my case ?

 

P.S my "Green Card" expires in June of 2021.

 

Thank you so much for sharing this time with me .I hope this excerpt was as thrilling and gripping for you as it was for me. 

[Badguy 1]

I believe there is the option of early N-400 submission done 4 years 6 months and 1 day after entry ,which would set my submission date to early March of 2020.  Please advice if this is correct .

[Badguy 1]

This is a short version of previous post, seems I type to much.

 

Currently ,I'm four years and 10+ days into my "Continuous Residence" AFTER a 10 to 13 month absence . What happened during absence can be found HERE (link to LONG original post). Would there be any chance of a N-400 being approved if I file early after the 4 year 6 month and 1 day threshold ? I believe it would set my submission date to early March of 2020, I entered the US in Sept 4th 2015.  Please advice if this is correct .

 

OR

 

Is it 90 days before your 5th year anniversary  ? Setting my Submission date to  early June of 2020 .

 

I was hoping on filing earlier as I've been a LPR since 2011 but with all my absences, It's hard for me to keep track of all that has happened .Even going through my old Passport I can't track all my trips outside the US.

 

P.S my "Green Card" expires in June of 2021.

[dwheels76 5,486]

17 minutes ago, Badguy said:

This is a short version of previous post, seems I type to much.

 

Currently ,I'm four years and 10+ days into my "Continuous Residence" AFTER a 10 to 13 month absence . What happened during absence can be found HERE (link to LONG original post). Would there be any chance of a N-400 being approved if I file early after the 4 year 6 month and 1 day threshold ? I believe it would set my submission date to early March of 2020, I entered the US in Sept 4th 2015.  Please advice if this is correct .

 

OR

 

Is it 90 days before your 5th year anniversary  ? Setting my Submission date to  early June of 2020 .

 

I was hoping on filing earlier as I've been a LPR since 2011 but with all my absences, It's hard for me to keep track of all that has happened .Even going through my old Passport I can't track all my trips outside the US.

 

P.S my "Green Card" expires in June of 2021.

You entered the US Sept 4, 2015 and your green card expires June 2021 How? When did you get your green card?

[Badguy 1]

 I received my  i-551 ,category f33, in  May of 2011 age 27, 15 ish so years from date of application . 

 

[Badguy 1]

Life story can be found HERE (link to LONG original post).

[Badguy 1]

After reading a lot of the post I have decided to File no earlier than 90 before my 5 year anniversary ....I do not want to chance an interview with a IO who has not had his morning coffee and is a Dolphins fan ..

[PK_ 43]

The main question that you have is related to your extended travel outside of the U.S. There are 2 different eligibility requirements that are related to this.

1. Show that you have been physically present in the United States for 30 months.

2. Demonstrate continuous permanent residence in the United States for at least 5 years.

 

First, there is a difference between "continuous residence" and "physical presence".

For #1, you are covered now since you have been physically in the U.S. for more than 30 months for the past 5 years.

For #2, based on your life story, your long trip was more than 6 months but less than 1 year. Technically, you can try to convince them that you did not break the residency if you can provide evidence such as:

• 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

See https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

 

If you don't want to convince them, then your reference to the policy manual appears to be appropriate for your case.

 

Quote

3. Eligibility after Break in Residence

An applicant who is required to establish continuous residence for at least 5 years ^[15] and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement ^[16] may apply two years and one day after returning to the United States to resume permanent residence. ^[17] 

 

Please note that the 90-day early filing is only applicable for the 5th anniversary of being a green card holder. It does not apply to you since you have already been a green card holder for more than 5 years.

Nothing says that the 90-day early filing applies to that break in residence clause.

 

Since you have arrived to the U.S. on September 4, 2015 to re-establish your U.S. residence, all of the information here suggests that you are eligible to file the N-400 now.

Edited September 17, 2019 by PK_

[xyz12345 260]

9 hours ago, Badguy said:

This is a short version of previous post, seems I type to much.

 

Currently ,I'm four years and 10+ days into my "Continuous Residence" AFTER a 10 to 13 month absence . What happened during absence can be found HERE (link to LONG original post). Would there be any chance of a N-400 being approved if I file early after the 4 year 6 month and 1 day threshold ? I believe it would set my submission date to early March of 2020, I entered the US in Sept 4th 2015.  Please advice if this is correct .

 

OR

 

Is it 90 days before your 5th year anniversary  ? Setting my Submission date to  early June of 2020 .

 

I was hoping on filing earlier as I've been a LPR since 2011 but with all my absences, It's hard for me to keep track of all that has happened .Even going through my old Passport I can't track all my trips outside the US.

 

P.S my "Green Card" expires in June of 2021.

The I-94 has your entrances/exits from US. You can check those out but they might not show everything like in my case. Start listing your trips on excel and list them as you go.

 

Much less headache and evidence to provide if you apply 90+ days later than when you plan to do. But if you decide to do early filing (5 years minus 90 days), make sure you don't apply on the first eligible day. Wait for a least a day or two. Much less heachache too!

 

1. Absence of More than Six Months (but Less than One Year)

An absence of more than six months [more than 181 days but less than one year (less than 365 days)] during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship. ^[11] 

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.

 

 

 

[Badguy 1]

4 hours ago, PK_ said:

If you don't want to convince them, then your reference to the policy manual appears to be appropriate for your case.

 

Quote

3. Eligibility after Break in Residence

An applicant who is required to establish continuous residence for at least 5 years ^[15] and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement ^[16] may apply two years and one day after returning to the United States to resume permanent residence. ^[17] 

I believe you are referring to, "The USCIS Policy Manual and 8 CFR § 316.5(c)(1)(ii) state that if an applicant has an absence of 1 year or more, the applicant only needs to wait 4 years and 1 day to apply.14" . It goes on to  explain as follows "(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 date of the applicant's return to the United States to resume permanent residence."   I saw this also but consider it a "ballsy",due to my lack of understanding. I also fear that it may prompt an IO to challenge with ,"It wasn't absence but abandonment ".

 

4 hours ago, PK_ said:

Please note that the 90-day early filing is only applicable for the 5th anniversary of being a green card holder. It does not apply to you since you have already been a green card holder for more than 5 years.

Nothing says that the 90-day early filing applies to that break in residence clause.

This would have surely came back to bite me lol. Thank you so much !

 

I

 

[Badguy 1]

6 minutes ago, xyz12345 said:

The I-94 has your entrances/exits from US. You can check those out but they might not show everything like in my case. Start listing your trips on excel and list them as you go.

 

I found my old Expired Passport with the Admitted and Departure Stamps , no i-94's though. I'll set down tonight and list all my Entries and Departures for your consideration . 

[xyz12345 260]

14 minutes ago, Badguy said:

I found my old Expired Passport with the Admitted and Departure Stamps , no i-94's though. I'll set down tonight and list all my Entries and Departures for your consideration . 

I forgot but the CBP history goes back to 5 years only. Those older than 5 years get erased (personal experience). I was here on non IV before so I guess they continued the I-94 history after I became an LPR. I had only 1 international trip/year so not much legwork except that I have to list the countries I visited in each trip. Yup, that will be quite something trying to recall all those trips from passport stamps alone! Hoped you saved your flight ITs and boarding passes.

Edited September 17, 2019 by xyz12345

[Bella8 4]

So you waited 5 years - 90 days after your break in continuous residency? 

[Badguy 1]

3 hours ago, Bella8 said:

So you waited 5 years - 90 days after your break in continuous residency? 

I was asking  about my options of early filing. If I file early after the 4 year 6 month and 1 day threshold ? I believe it would set my submission date to early March of 2020, I entered the US in Sept 4th 2015.  Please advice if this is correct .

OR

Is it 90 days before your 5th year anniversary  ? Setting my Submission date to  early June of 2020 .

 

I currently have 4 years and 15 days +-  after absence .

 

Now, I'm curious about what terms apply to "The USCIS Policy Manual and 8 CFR § 316.5(c)(1)(ii) state that if an applicant has an absence of 1 year or more, the applicant only needs to wait 4 years and 1 day to apply.14"

 

[Bella8 4]

I will wait 3 years - 90 days (marriage based). Safe. USCIS is going 3 years (in my case) back from the the date of filing  and is looking if you have any absence of 6+ months during this period of time. I had two lawyers tell me that I could file earlier but I decided to wait 3 years - 90 days. Why don’t you consult a lawyer? First consultation is often for free.