USCIS Continous residence policy

[xyz12345 260]

6 minutes ago, Ray.Bonaquist said:

She must wait 4 years and 6 months from 6/6/2016 before applying. See below directly from the USCIS website.

 

In my opinion if the money $725 is not a big deal she should go ahead and apply. Worst case she is denied. Remember the fee is going to go up.

 

But first of all why is she waiting for five years to apply? If you’re a citizen and you’re still married to her she only needs 3 years.

didn't see this one

[radhk 0]

2 hours ago, xyz12345 said:

Before 6/11/2015, how long has she been a GC? If more than 1 year, imo YES, she can apply 4 years +1 day after 360 day absence. I'm assuming you're not a USC?

She got her green card in July 2010. but until 6/11/2015 she had lot of trips back Home country.  she is mostly in US from 6/6/2016.

 

 

[radhk 0]

2 hours ago, Ray.Bonaquist said:

She must wait 4 years and 6 months from 6/6/2016 before applying. See below directly from the USCIS website.

 

In my opinion if the money $725 is not a big deal she should go ahead and apply. Worst case she is denied. Remember the fee is going to go up.

 

But first of all why is she waiting for five years to apply? If you’re a citizen and you’re still married to her she only needs 3 years.

I just got my Citizenship in Jan 2020. so she is not eligible for 3 years .

[xyz12345 260]

5 hours ago, radhk said:

She got her green card in July 2010. but until 6/11/2015 she had lot of trips back Home country.  she is mostly in US from 6/6/2016.

 

 

food for thought, page 3

https://www.ilrc.org/sites/default/files/resources/continuous_residence_practice_advisory_final.pdf

 

Without clear guidance, one option is for applicants to wait until enough time has passed so that they no longer have an absence of more than 6 months during the statutory period (i.e., 4 years, 6 months, and 1 day; or 2 years, 6 months, and 1 day, if applying as the spouse of a United States citizen).

 

Another less certain route is to argue for sensible statutory interpretationby comparing how the regulations treat absences of 1 year or more. 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 (or 2 years and 1 day if applying as the spouse of a United States citizen) to apply.14Courts are guided by the long-standing principle that “statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, . . . avoid an unjust or an absurd conclusion.” Lau Ow Bew v. United States, 144 U.S. 47 (1892). Therefore, one could argue that applicants with absences of over 6 months, but less than 1 year should not have to wait longer to apply than their counterparts with absences of over 1 year.

 

Accordingly, applicants with absences of over 6 months, but less than 1 year should also only have to wait 4 years and 1 day (or 2 years and 1 day if applying as the spouse of a United States citizen). Because different USCIS offices could have different interpretations, there is a chance that USCIS may find that the applicant reapplied too soon which may further delay the application

 

 

It's weird if you can apply after 4 years and 1 day if your absence is more than 1 year, but then have to wait 4 years and 6 months if your absence is between 6 months and 1 year.

 

You can also apply right now if you can prove not breaking continuous residence. If not, you just lose the application fee. Did she use US-based credit cards while overseas?