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Harry245

N-400 - Physical Presence - To Give Up or Try

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Filed: EB-1 Visa Country: Australia
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Hey everyone.  Need your advice again.  I posted earlier about my issue in another topic, but as this is related to physical presence on N-400 specifically, I thought it best to start this question fresh.

 

I got my LPR on the 29th of May 2015.

 

My N-400 application was accepted on the 15th March, 2020 (filed early under the 90 day rule).

 

On the 18th of March, 2020 -- I left on an international trip and soon found myself stranded outside of the US due to the pandemic international travel bans, and because I was advised by my heart doctor not to fly due to Morbidity risks with Covid (due to scarring).  And the complications kept coming (as you'd see in another post).

 

My work has me moving between two countries frequently (I'm in the film industry).  I've had an apartment in LA since 2016, and have always filed my taxes, etc.  The US is my home.  But often the work requires periods of travel (shooting, pre, all of this fun).

 

My trips outside the US between 05/29/2015 and 05/29/2020 are as follows :

 

image.png.795e4328a3d9eed7819d1b929a4a0933.png

 

As you'd see... when I submitted my N-400, I was within the threshold for proving physical presence.  Continuous residence, I have hoped, is not an issue as I've always had US employment during the whole five years.

 

But then Covid changed everything post N-400 application.

 

I've finally gotten a second interview date (I had to reschedule the first because I couldn't secure a flight to US in time -- a problem that's still going).  that's for March 8th.

 

Although my doctor says it's an unacceptable risk to fly, my immigration lawyer disagrees.  Not the least as I'm approaching twelve months stuck out of the country and I might be looking at an immediate loss of my GC.

 

The situation, for me, is dire.  Even when you take the Covid risks out of the equation, cheapest flight available to me will cost $20K.

 

I'm looking at the maths of it all... and unless I'm missing something... appears I've completely blown the 913 day requirement... all by half a month.  Even if I can prove continuous residence (which my lawyer is positive about) -- I don't see any stories on here about the physical presence requirements getting special consideration due to the Pandemic.

 

And since I'm so far past the 25/05/2020 mark now... my guess is all I'll hear in my interview is an automatic denial and be told I need to start the naturalization journey all over again for a new five year uninterrupted period.

 

All things considered, I feel defeated and stressed and lost over it all.  My thoughts right now are to withdraw my N-400 and just let my Green Card lapse over into a twelve month absence, and apply to reactivate it when there aren't one in eight people with Covid-19 in my neighbourhood.

 

I see the issue from all sides.  Rules and rules.  And I get it

 

Just hoping for some advice... or even just to hear I'm right and to withdraw.

 

The last lawyer I spoke to charged me $650 for a thirty minute consult.  And as my experience with visas and GCs and all things immigration has taught me over the last ten year journey (I used to be on 01s)... it's that lawyers just say anything to get paid.   But they can't change my time away from the US from 929 days to 913 days no matter how good they are.

 

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Filed: K-1 Visa Country: Wales
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My first thought taking into account your medical issues is whether you will ever be able to return to the US. It seems that your Doctor is saying no.

 

A lot would seem to depend on your medical prognosis.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Filed: EB-1 Visa Country: Australia
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I have pre existing heart scarring, which puts me at a high risk of serious covid related complications.

 

If you took the pandemic out of the equation, there would be no issue.  But whilst my neighborhood in LA is hitting one in eight people infected, plus the risks associated with flying internationally right now... it’s not exactly an easy decision for me to chance on.

 

Between my 01s and this green card, I’ve worked and lived in the US for eleven years.  Of course it means everything to me to get naturalized.


But how was I ever supposed to factor a likely 2 year international flight ban and a once in four hundred years pandemic into my n-400??

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Filed: K-1 Visa Country: Wales
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Well COVID has complicated many people's lives.

 

Not sure where you are getting your flight prices from, I had a quick look and saw $2k, but if you can not fly then does not matter how much they are. That seems the crux as Covid is not going away, hopefully the risk factor will reduce.

 

So my thought is that first you need to workout what is possibly Medical and it sounds like you will not be flying any time soon.

 

Evidence trail so that you can maintain your US residency.

 

Worry about naturalisation for what seems to be much later.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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Filed: EB-1 Visa Country: Australia
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Yeah google flights kept saying $2k for flights for me as well. But if you actually try and buy a ticket by clicking on that price, you’ll see it links through to a generic google search for travel agents.

 

The direct airline prices are closer to 9-10x that amount. And if you try those dates/destinations in any of these travel sites, you get the same result. Expedia, flight centre, ect.
 

That’s not what the prices are at all... and where google is pulling those $2k prices from is, at my guess, based on older historical prices from a non pandemic reality.  Delta won’t even SELL you a non business class ticket on their direct site.

 

I understand Covid has affected everyone. I’m not after sympathy. But it would be heartening to hear that USCIS was reflecting that reality in their decision making. But with some of the stories on here, that’s not what I’m hearing. And it’s making it very difficult to know what to do given these choices I make right now with ripple through the rest of my life.

 

Getting naturalized means enough to me that I’d take the one in eight chance on my health to comply with the rules, but it seems to me, from my understanding that the only way I’d be in compliance with the physical presence rule is if USCIS counted my days abroad from the time I applied and not post getting trapped abroad due to Covid.

 

And there’s plenty of older forum threads on here that seem to indicate there is no hard ruling on that. It could be your application date they count from, could be interview date, could be my anniversary date. It’s up to the interview officer and what mood they’re in.

 

Hence turning to you guys here for advice and suggestions.

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I haven't heard of people being asked for their travel information AFTER they have filed for naturalization. That does not mean they don't have access to it at the interview; they could look it up if they wanted. Now, even if officer decided you were too long abroad, you probably have a case before a judge or you simply apply at another time. Your GC doesn't get taken away. 

 

I'd say you should listen to your doctor. If you decided to fly, you can fly to, let's say NYC or DC, or anywhere that's a direct flight, just to be in the US, and stay in "lockdown" somewhere there. You can keep postponing your naturalization interview or just withdraw that and file it again next year. If you are at such high risk, this is not going to be over until next year. 

 

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Filed: AOS (pnd) Country: Philippines
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It seems to me that the physical presence rule only applies to the five years preceding the application, and all that is required for the period afterwards is to maintain your residence here:

 

"No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship"

 

https://www.law.cornell.edu/uscode/text/8/1427

 

There are also provisions for people employed by American-owned film companies, which you could look into.

 

As for the 1 in 8 COVID problem, I think that would not necessarily be a concern if you were able to maintain a strict quarantine on yourself until you get vaccinated and reach immunity.

 

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Filed: EB-1 Visa Country: Australia
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The wording of the above from the rules is what has me confused.

 

Continuous residence aside as it’s different to physical presence...

 

...at the time of application I had 858 days abroad since receiving my LPR, and I had applied with the 90 early rule.

 

I believe this is why my interview has still been scheduled and the issue wasn’t already flagged.

 

BUT due for circumstances beyond my control, by the time of my LPR anniversary, I believe my time abroad was 928 days (though if you subtract the departure and arrival days that number is 916 days abroad — again no hard and fast rule on this).

 

As that’s three days past the 913 day rule, I’d be out of compliance at my anniversary date, but within range on application date. And I’ve seen stories on here of interview officers using both dates as their deciders.

 

This is the part that concerns me enough to reconsider how much I want to risk my health for what is most likely an automatic denial.

 

The dates in the spreadsheet above are what I am positive the CBP have logged on me, so there’s little point trying to hide that fact.

 

Alternatively, maybe people just don’t post that many positive stories here about interview officer interactions and I’m really overthinking the concern with this. Especially in this strange time of Covid.

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Filed: AOS (pnd) Country: Philippines
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"For purposes of calculating time spent outside the United States, USCIS does not count the dates of travel among the dates spent outside the United States. https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-3

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Filed: Timeline

The health concerns are what they are, can’t change that, and I’d be wary in your boat myself.
 

But to rule cost out as an issue...you may want to try looking direct with a US based airline like United. I got one way flights from Sydney to the US for 1/10 or 1/20 what you’re being quoted booking direct on United’s website. Might require booking a separate domestic flight in Australia or the US, but you’re absolutely getting ridiculous prices (unless you were looking at first class). 

Edited by tomatoboy

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Filed: K-1 Visa Country: Wales
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I just checked Quantas and saw flights starting at under 1kAUD.

 

However the price is not relevant to the discussion. Not an issue that the US Gov would take into account.

 

I has assumed the medical issue was paramount, so taking that out of the equation seems no problem flying back and attending the interview. Worst that could possibly happen is a delay. And that seems unlikely.


“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

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9 hours ago, Harry245 said:

But how was I ever supposed to factor a likely 2 year international flight ban and a once in four hundred years pandemic into my n-400??

But people with both immigrant visas and green cards are getting permission to leave Australia. I can understand your COVID-related reluctance, and it sounds like a minor bureaucratic hassle to get the the permission to leave, but it definitely can be done.  

 

1 hour ago, Harry245 said:

Continuous residence aside as it’s different to physical presence...

You need to meet both though, and not lose your green card.  At this point I’d say (after your health of course) the latter seems the most critical factor for you. Also, I know your lawyer says you can prove you maintained continuous residence but that is only something you can do during the “rebuttable” period (over 6 months, less than a year). Once you are out a year, you have broken it. There is no coming back to “prove” you haven’t. 

 

3 hours ago, Coco8 said:

I haven't heard of people being asked for their travel information AFTER they have filed for naturalization. That does not mean they don't have access to it at the interview; t

They most definitely do ask if you have traveled abroad since you filed, at the interview and again at the oath ceremony (for travel since interview). Also note the manual says (wrt continuous residence) “An applicant for naturalization under the general provision[1] must have resided continuously in the United States after his or her lawful permanent resident (LPR) admission for at least 5 years prior to filing the naturalization application and up to the time of naturalization.
 

1 hour ago, Harry245 said:

believe this is why my interview has still been scheduled and the issue wasn’t already flagged.

Your interview is scheduled because you filed the form and it has been processed. They don’t schedule or not depending on presence etc, whether you have met all the requirements is something determined during the interview.

 

 

Edited by SusieQQQ

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Filed: EB-1 Visa Country: Australia
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To the above -- if you found a flight from Sydney to LAX on Qantas under $1000 in Feb, you're doing well.  They're not flying to the USA until at least July 2021 and that's still under review.  At the moment, it's Delta and United doing most of the travel, and when not in under quarantine restrictions, Air NZ has been flying some legs too.  But this isn't the point.

 

My health concerns me.  Losing the green card concerns me.  Getting the N-400 concerns me.  I know I have a fight on my hands in terms of proving continued residence thanks to this absence -- but I feel quite confident that having the same apartment for five years and constant US employment and almost an eleven year history now on different visas and healthy tax returns will work favourably for me.

 

PHYSICAL PRESENCE, on the other hand, worries me.

 

As I said.

 

AT TIME OF 90 DAY EARLY APPLICATION (05/29/2015 - 03/15/2020)

 

I had spent 858 days abroad, if you calculate it as -1 for travel time (per above) or 845 days if you count it as -2 (I've seen both examples on these forums)

 

AT TIME OF GREEN CARD ANNIVERSARY (05/29/2015 - 05/29/2020)

 

I had spent either 929 days abroad or 915, depending on your calculations.

 

If the anniversary date is to be the final ruling on things, then I don't see how I could possibly be facing anything other than an immediate denial unless there's a rapid change to the law/rules to reflect Covid-related interruptions.

 

And if that's the reality of things, maybe I'll listen to my doctor over the lawyer and turn my focus to getting the green card reinstated in a post-pandemic world where I don't have to worry about a one in eight chance of ending up on an ICU ventilator.

 

What do you guys take away from that physical presence issue?

 

Am I catastrophizing or do you think that's about right?

Edited by Harry245

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