What criteria does the USCIS use to decide when the applicant has established residence in a US district/state for the 3-month requirement?

[FranckDernoncourt 1]

The 3-month requirement to apply for naturalization in a US district/state is computed from the date on which the applicant first established that residence, including any part of the applicant's absence. (https://www.ecfr.gov/current/title-8/chapter-I/subchapter-C/part-316/section-316.2#p-316.2(a)(5))

 

What criteria does the USCIS use to decide whether the applicant has established residence in a US district/state? To phrase it slightly differently: what event(s) does the USCIS use to decide the date on which the applicant first established that residence?

 

E.g., is the issuance date of a driver's license in that US district/state considered by the USCIS as a proof that the applicant has established in that US district/state at that time (=the issuance date of the driver's license)? The date when the lease/mortgage? The date when the Internet/electricity/gas/water start?

 

[milimelo 4,862]

Given that you can’t do much until you have an address I’d say from renting/buying a place. 

[Mike E 11,764]

If you didn’t change addresses since you received your green card in the mail, then that covers it since by definition you didn’t change states and it’s been a while since states ceded territory to each other.  
 

If you changed addresses then of course you filed AR-11 and so that covers it. 

Edited May 7, 2022 by Mike E

[FranckDernoncourt 1]

I wonder whether the United States Citizenship and Immigration Services (USCIS) must abide by the Code of Federal Regulations (CFR)  or the CFR is just a set of guidelines that aren't legally binding (i.e., the USCIS may take actions/decisions that contradict the CFR without potentially facing legal consequences).

 

I'm mostly interested in the part of the CFR that pertains to the naturalization process.

[Mike E 11,764]

USCIS routinely  fails to abide with the law, regulations and its own field manual.  I see this a lot with N-400.  Generally it’s cheaper to file a new N-400 than appeal. Hence USCIS doesn’t get forced to comply. 

[FranckDernoncourt 1]

 

1 hour ago, Mike E said:

USCIS routinely  fails to abide with the law, regulations and its own field manual.  I see this a lot with N-400.  

Thank you. I'm mostly interested in the regulation 8 CFR 316.5(b)(5)(i), which states that one must have lived for at least 3 month in a US district/state to apply for naturalization in that US district/state. It also states that these 3 months are computed from the date on which the applicant first established that residence and include any period of time where the applicant is absent from the US. Do you know whether in practice, the USCIS officers do include any period of time where the applicant is absent from the US when computing these 3 months?

 

[Mike E 11,764]

Letter of law says one could establish residency for first 24 hours and be physically absent from the state / FO district the remainder of roughly 90 days.  
 

Common sense suggests that the LPR be physically present for at least 24 hours of day 1 of the statutory period and for the remainder of 3 moths spend the majority of ones time in the state / FO district before filing. Otherwise it seems like residency of convenience.  Unless one lives in DC or a micro  state like Delaware or Rhode Island, it’s hard to imagine this being a problem except for people who aren’t actually living in the USA.  

 

We’ve had a heated topic of this in the last 30 days and the OP declared intent to file anyway.  That OP was going to file in fall of this year so I’ve no actual data point.  
 

Here is an example of where USCIS doesn’t follow the law. An LPR had just enough physical presence in the past 5 years to file N-400.  Then the LPR traveled more and by the time of the interview, the physical presence in the USA had dropped below 50 percent for the 5 year period leading up to the interview.  IOs state that standard operating procedure is to deny N-400.  
 

But the law says something different:

 

https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1427&num=0&edition=prelim

 

“a) Residence

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, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”

 

Congress says the LPR need only reside continuously in the USA after filing N-400. Thus an absence of 180 days between filing and interview or between filing and oath should be OK.  But that’s not how USCIS interprets it. 
 

 

 

 

[Boiler 48,088]

You could sue them, let a Federal Judge decide, probably much much easier just to follow the normal practice.

[FranckDernoncourt 1]

26 minutes ago, Boiler said:

You could sue them, let a Federal Judge decide, probably much much easier just to follow the normal practice.

Thanks, the issue is how to know the normal practice.

[Boiler 48,088]

I do not know your situation but if you think you may be short a few weeks wait those extra weeks before filing.

[FranckDernoncourt 1]

57 minutes ago, Mike E said:

Common sense suggests that the LPR be physically present for at least 24 hours of day 1 of the statutory period and for the remainder of 3 moths spend the majority of ones time in the state / FO district before filing. Otherwise it seems like residency of convenience

Thanks, I agree that just staying for a few hours to establish residency is on the extreme side and would certainly cast suspicion on the actual residence. At the same time, if one had to be physically present for the majority of the 3 months in the state district of residence, then why wouldn't the law clearly state so, as they do for the 2.5-year physical presence requirement?

 

Anyway luckily in my case I don't have this issue as I'll be physically present for the majority of the time in my state of residence but clearer rules wouldn't hurt, especially with the current N400 progressing times.

 

 

Edited May 8, 2022 by FranckDernoncourt

[Mike E 11,764]

35 minutes ago, FranckDernoncourt said:

Thanks, I agree that just staying for a few hours to establish residency is on the extreme side and would certainly cast suspicion on the actual residence. At the same time, if one had to be physically present for the majority of the 3 months in the state district of residence, then why wouldn't the law clearly state so, as they do for the 2.5-year physical presence requirement?

I've already quoted an ambiguous part of the law as passed by congress referring to the period between filing and oath. Congress is leaving it open to interpretation. The concept of what 3 month residence is apparently something congress felt no need to explicitly codify and thus it falls to the executive and judicial branches. Residency is always going to be an ever evolving concept.

 

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Anyway luckily in my case I don't have this issue as I'll be physically present for the majority of the time in my state of

So what are you seeking in this topic?

 

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residence but clearer rules wouldn't hurt, especially with the current N400 progressing times.

Expecting Congress to spend any energy clarifying this minor aspect of law is dreaming, especially since it isn't practical for some residents of DC and the micro states to spend 50% of their time in DC / their state. The mind boggles how to write that requirement. Say a hurricane destroys Houston in the middle of the statutory period.. A  Houston LPR with a planned N-400 can easily find another part of Texas to reside in the statutory 3 month period. Now say a hurricane destroys DC. A DC LPR with a planned N-400 cannot easily find another part of DC to resident in the statutory 3 month period. Should that LPR be forced to wait 3 months after the hurricane to file? Doesn't see fair. So how does one write the law to make it fair?

Edited May 8, 2022 by Mike E

[Unlockable 7,322]

*** Threads of the same topic merged. Only one thread per topic is allowed.

 

VJ Moderation

[Buboo 2]

There is no problem here.

Residency does not mean to be physically present in the last 90 days at that location. Residency is seen as your "permanent" address. 

The idea of having at least 90 days of a residency in a certain place is that you don't move just to benefit from a faster processing time in another district/state.

There is no need to live( to be present) at your address for 90 days. For example, if you are on OTR driver and you live in the truck for months, travelling all over US, you are ok to file even though you were "at home" in those 90 days.  How ca one prove that he was home ....it s nonsense. 

Residency means legal domicile, the one that you consider home, especially in legal documents.

 

[Buboo 2]

Not only that, but the law also says :

 

The applicant’s “residence” refers to the applicant’s principal, actual dwelling place in fact, without regard to intent. ^[3] The duration of an applicant’s residence in a particular location is measured from the moment the applicant first establishes residence in that location. ^[4] 

 

 

An applicant's residence during any absence abroad of less than one year will continue to be the state or service district where the applicant resided before departure. If the applicant returns to the same residence, he or she will have complied with the three-month jurisdictional residence requirement when at least three months have elapsed, including any part of the absence, from when the applicant first established that residence. ^[11] 

If the applicant establishes residence in a different state or service district from where he or she last resided, the applicant must reside three months at that new residence before applying in order to meet the three-month jurisdictional residence requirement.^[12] 

 

 

"If the applicant returns to the same residence, he or she will have complied with the three-month jurisdictional residence requirement when at least three months have elapsed, including any part of the absence, from when the applicant first established that residence"

 

This is what makes many people confused. 

So for example if you have lived there for at least 90 days before leaving and you are returning at the same address you are complying with the 90 days mandatory residency. What is important is when you established that residence. 

Establishing the residence is proved by having the ID or other legal documents.

 

 

 

Please read the manual : https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-6

 

 

Edited May 8, 2022 by Buboo