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jimbrackets

Overcoming presumption of interruption

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Hello again everyone

I'm eligible for natualization through marriage cerca January. However, I was out of the country just over six months thanks to flight disruption over corona. How likely is it I can overcome presumption of interruption? How difficult is this to do generally? I would like to avoid consulting a lawyer if possible, as I can accumulate the evidence myself. Just wondering how thin ice I am on.

Thanks.

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Filed: AOS (apr) Country: Russia
Timeline

you are over analyzing it.  just wait for evidence if they think. as long as you were able to get back into the country, i dont see any issues 


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Well, my time frame is rather tight so I'd rather deal with this problem before they ask for evidence.

 

I've subsequently uncovered another 200 day absence because of a temporary research post abroad, which makes the question a little more pressing.

 

Without going into any detail, how difficult is it generally to overcome the presumption of abandonment? Given that my first absence can't be put down to covid.

Edited by jimbrackets

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10 hours ago, jimbrackets said:

Anybody have thoughts on this?

Well, the “thoughts” are in the policy manual. So collect what you have to provide the kind of evidence they ask for, and hope it’s enough. They will presume the break - even for the absence that was “just over” - so have the evidence. Have seen a few reports of people doing this successfully.  (If your temporary research post abroad was for a US employer or related somehow, that would help.)
This is what the manual says:

 

However, an applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such 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 members remained in the United States; and
  • The applicant retained full access to or continued to own or lease a home in the United States.

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

 

 

On 10/5/2020 at 2:59 PM, James120383 said:

you are over analyzing it.  just wait for evidence if they think. as long as you were able to get back into the country, i dont see any issues 

Disagree. There is a difference between “being able to get back in the country” - which is about maintaining residence and only requires an absence of less than a year - and overcoming the presumed break in continuous residence for naturalization purposes, which is a different issue and comes in at the 6-month mark.  OP is not over analyzing it - they will highlight any absence longer than 180 days in the interview.

Edited by SusieQQQ

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Thanks guys. I guess I am asking: how difficult is this barrier to overcome? How severe are they?

 

I now have two instances of 200+ and I can make the case that continuous residence can be overcome, I could potentially use the 2 year one day rule. Though apparently all absences are fair game? Or are there now serious holes in my case?

 

Other factor is my conditions were lifted without interview, which suggests to me I am low fraud potential case. Would that help me here?

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Impossible to answer without knowing the evidence you’ll show them. It is certainly able to be overcome, though. Having two such absences might make it more difficult. 
N400 has got nothing to do with fraud risk for an immigrant visa, not having to interview for other things is irrelevant here.

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Thanks again Susie.

 

Final question on this.

 

If I apply the two years one day rule to my eligibility date (i.e. first day of return after 200 day absence), it comes out just one month later than my original deadline.

 

Is it worth waiting this one month extra to avoid having to explain that first 200 day absence? Or will they follow up with me on it either way?

 

Because in that case I'll just use the earlier eligiblity date and hope for the best.

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I thought the 2/4 years plus one day rule only applied after an absence of a year or longer (unbroken), but I’m not an expert on it. The link I gave you earlier describes different “rules” for >6 months <1 year vs >1 year absences, in the text and in the table at the end.

 

Edited by SusieQQQ

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Quote

If the applicant is unable to rebut the presumption, he or she must wait until at least 6 months from reaching the 5-year anniversary of the newly established statutory period following the applicant’s return to the United States. In this example, the newly established statutory period began on August 1, 2018, when the applicant returned to the United States. Therefore, the earliest the applicant may re-apply for naturalization is February 1, 2023, which is at least 6 months from the 5-year anniversary of the pertinent statutory period.

Yeah it's pretty confusing to me. Basically if you fail to overcome presumption (which can only be determined after applying) then you recount five (or three) years from the date of reentry.

 

But now you can apply six months before that deadline as opposed to three? So it is actually more generous in some ways?

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44 minutes ago, jimbrackets said:

When did it change? Does six months apply to the standard procedure as well or only to the "two years one day" rule?

Again, one applies to an absence longer than 6 months but shorter than a year, and the other to an absence longer than a year. It’s in the link.

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Yeah but the link is ambigious because USCIS only determines whether you have broken continuity (for 200 days) AFTER having applied.

 

If it were possible to decide for MYSELF that I interrupted continuity (for 200 days),  and thus applied using "two years one day" – apparently qualifying to apply six months before eligibility (rather then three months) – I would actually qualify SOONER than my original date.

 

This obviously seems to good to be true, so I'm wondering why.

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19 minutes ago, jimbrackets said:

Yeah but the link is ambigious because USCIS only determines whether you have broken continuity (for 200 days) AFTER having applied.

 

If it were possible to decide for MYSELF that I interrupted continuity (for 200 days),  and thus applied using "two years one day" – apparently qualifying to apply six months before eligibility (rather then three months) – I would actually qualify SOONER than my original date.

 

This obviously seems to good to be true, so I'm wondering why.

Yes, technically you first need to apply and be denied before you can do it.
However, again, two years plus one day does not apply to an absence less than one year and it’s a separate rule from the 6 months prior.  It’s indeed not too good to be true.

Edited by SusieQQQ

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