2 year and one day rule? Should I file N400?

[ivantran85 1]

My spouse is USC, I am LPR more than 3 years. I lived with my USC husband in VIetnam for more than one year with reentry permit. So i have broken the continuous residence requirement. However, according to https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3, 

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] 

 

I am just afraid that the USCIS officer not familiar with this rule. So after I come back to live in US, should I wait 2 year and one day and file N400?

OR should I wait 2 year and 9 months and file the N400 to make the process much simpler?

 

Advise please. Thank you so much

 

 

[sutu 6]

Wait 2 year and one day. After breaking your continuous resident, your time in Vietnam will be counted as 1 year. So, total counting will be 3 year 1 day. Don't worry about IO. They definitely know about this rule.

 

However, be prepared to answer a lot of questions about the trip that breaks your continuous residence(trip over 1 year). 

 

Edited October 7, 2019 by sutu

[Zaidba 39]

There is confusion about this rule. I have discussed it with several lawyers, some think it applies and others said it applies ONLY if you have been denied!

It does not make sense, but the wordings of the rule says that. Therefore, if you don't mind the application fees, it is worth a try, otherwise waiting one more year is safer. Good luck.

[afrocraft 313]

16 hours ago, Zaidba said:

There is confusion about this rule. I have discussed it with several lawyers, some think it applies and others said it applies ONLY if you have been denied!

It does not make sense, but the wordings of the rule says that. Therefore, if you don't mind the application fees, it is worth a try, otherwise waiting one more year is safer. Good luck.

Really interesting point, but I think OP can apply after 2 years + 1 day. The source of the confusion is the USCIS Policy Manual, which says in Vol 12 Chapt 3 C. Breaks in Continuous Residence:

 

Quote

3. Eligibility after Break in Residence

An applicant who is required to establish continuous residence for at least 5 years 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 may apply two years and one day after returning to the United States to resume permanent residence.

 

However, the regulations, which are superior to the Policy Manual, and from which the Manual is derived, are clearer. They do not include the requirement that the application be denied. See 8 CFR 316.5(c)(1)(ii):
 

Quote

(c) Disruption of continuity of residence—(1) Absence from the United States—(ii) For period in excess of one (1) year. Unless an applicant applies (to preserve residence), absences from the United States for a continuous period of one (1) year or more during the period for which continuous residence is required... shall disrupt the continuity of the applicant's residence. An applicant... 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. 

To be safe, OP should cite and quote the regulations in a cover letter when s/he applies.

[Zaidba 39]

14 hours ago, afrocraft said:

Really interesting point, but I think OP can apply after 2 years + 1 day. The source of the confusion is the USCIS Policy Manual, which says in Vol 12 Chapt 3 C. Breaks in Continuous Residence:

 

 

However, the regulations, which are superior to the Policy Manual, and from which the Manual is derived, are clearer. They do not include the requirement that the application be denied. See 8 CFR 316.5(c)(1)(ii):
 

To be safe, OP should cite and quote the regulations in a cover letter when s/he applies.

One of the lawyers I talked to suggested that I should be aware of 2 issues with the 2 years +1 day (or 4 years + 1 day). The first one is the possible interpretation of IO that this rule applies only to those who have been denied, and the other issue is the interpretation that this rule applies only to those who stayed outside the US with a re-entry permit. The interpretation of the last point is because of the fact that the rule mentions those who stayed away for one year or more, but does not mention those who spent more than 6 months and less than one year. This will look like USCIS is giving a preference and a way to naturalization to those who have been absent for more than one year and depriving those who have been absent for less!!

Unfortunately, USCIS will not give clear and definite answers to these questions.