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

[Buboo 2]

Now, let's take an extreme example.

You have a house, rented or owned. Your id/taxes/etc  are issued on that location and USCIS also has you on their record at that address.  You decide to buy an RV in that 90 days window prior to filing for N 400. You start driving and living in different states. Let's also say that you want to take a cruise for a few days to visit Alaska and Mexico. Then you come back to your RV and drive more thorough US. You come "home" where you have your address and file for N 400.  You have 0 worries. You did not change your address, you did not change your residence. You are free to travel, to visit. Otherwise you would be confined at that address, which makes no sense at all. 

[Buboo 2]

"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] "

 

This is also extremely clear. If you return to the same address and if you have already lived there for 90 days ( counting the time outside the country) you are perfectly fine to file for N 400.

Those 90 days must be elapsed from the moment you first "moved" to that address, not from when you returned to it. The second paragraph highlights this too :

"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] "

 

 

[FranckDernoncourt 1]

5 hours ago, Mike E said:

Quote

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?

 

I'll be physically present in my state for more than 50% of the time and I would have resided between 3 and 3.5 months in my state by the time I submit my N400 application. (I write "between 3 and 3.5 months", because I don't know exactly what date count to establish one's residence).

 

This made me wonder where the USCIS draws the line. As you mentioned, the letter of law (8 CFR 316.5(b)(5)(i)) says one could establish residency and then be physically absent from the state / FO district the remainder of the time. Note that, from the best of my perhaps incorrect knowledge (and please correct me if I miss something), the same law doesn't specify how to establish residency: I couldn't find anything in CFR Title 8 on what's the criteria to establish residency.

 

The closest I could find so far is 26 CFR § 301.6362-6:

Quote

 

Example 4.

D loses his job in State X, where he lived and worked for many years. After a series of unsuccessful attempts to find other employment in State X, he accepts a job in State Y. D gives up his apartment in State X and moves to State Y upon commencing his new job; however, he intends to continue to explore available employment opportunities in State X so that he may return there as soon as an opportunity to do so arises. D changes his principal place of residence when he moves to State Y.

 

 

However, this is for Title 26 (Internal Revenue), not Title 8 - Aliens and Nationality, so I don't know if the USCIS follows the same definition. But I couldn't find anything in Title 8 yet. As a result, I wonder if the USCIS has clearly stated how they decide from which date the applicant has established residence in a US district/state for the 3-month requirement.

 

 

I just saw that some threads got merged. My clarity, there are 3 questions (which I'll post here since threads got merged😞

 

1. What criteria does the USCIS use to decide when the applicant has established residence in a US district/state for the 3-month requirement? E.g., the driver's license issuance date, the date when the lease/mortgage, the date when the Internet/electricity/gas/water start, etc.? for example, if the driver's license issuance date = April 1 and the lease/mortgage starts April 10, did the individual establish residence on April 1 or 10? In other words, can they submit the N400 application on July 1 or July 10?
2. How does one count the 3-month requirement to apply for naturalization in a US district/state?  Both the USCIS policy manual and the CFR says one count the 3 months from when the applicant has established residence, including any absence from the US. But as was mentioned earlier, if someone established residence and leave the US for the remaining of the 3 months, it seems quite extreme. So where does the USCIS draw the line? At 50% time in the US state, except if some special circumstances (e.g., job requiring to travel all the time or micro-states)?
3. Must the USCIS abide by the Code of Federal Regulations (CFR), or is the CFR just a set of guidelines that aren't legally binding? This question is motivated by the fact that answers to questions 1 and 2 often refer to the CFR and/or the USCIS policy manual, and that the the USCIS policy manual is not legally binding. Because if the CFR is not legally binding, then perhaps we should also read the US code to try to answer the first two questions.

 

 

 

 

Edited May 8, 2022 by FranckDernoncourt

[Mike E 11,764]

1. truthful, accurate, and timely AR-11

 

2. Ditto

 

3.  clearly not. More examples:

 

* LPR files 90 days before 3/5 years of LPR status.  USCIS schedules interview before 3/5 year anniversary of LPR status.  USCIS denies N-400.  This has happened.  
 

* LPR files N-400 online 90 days before 3/5 years of LPR status.  USCIS schedules interview after 4+/6+ years of LPR status.  USCIS denies N-400 because online server had the wrong timezone even though it was 90 days before 3/5 years of LPR status in all time zones of the USA at the time N-400 was filed.  This has happened.  

[Buboo 2]

39 minutes ago, FranckDernoncourt said:

 

I'll be physically present in my state for more than 50% of the time and I would have resided between 3 and 3.5 months in my state by the time I submit my N400 application. (I write "between 3 and 3.5 months", because I don't know exactly what date count to establish one's residence).

 

This made me wonder where the USCIS draws the line. As you mentioned, the letter of law (8 CFR 316.5(b)(5)(i)) says one could establish residency and then be physically absent from the state / FO district the remainder of the time. Note that, from the best of my perhaps incorrect knowledge (and please correct me if I miss something), the same law doesn't specify how to establish residency: I couldn't find anything in CFR Title 8 on what's the criteria to establish residency.

 

The closest I could find so far is 26 CFR § 301.6362-6:

 

However, this is for Title 26 (Internal Revenue), not Title 8 - Aliens and Nationality, so I don't know if the USCIS follows the same definition. But I couldn't find anything in Title 8 yet. As a result, I wonder if the USCIS has clearly stated how they decide from which date the applicant has established residence in a US district/state for the 3-month requirement.

 

 

I just saw that some threads got merged. My clarity, there are 3 questions (which I'll post here since threads got merged😞

 

1. What criteria does the USCIS use to decide when the applicant has established residence in a US district/state for the 3-month requirement? E.g., the driver's license issuance date, the date when the lease/mortgage, the date when the Internet/electricity/gas/water start, etc.? for example, if the driver's license issuance date = April 1 and the lease/mortgage starts April 10, did the individual establish residence on April 1 or 10? In other words, can they submit the N400 application on July 1 or July 10?
2. How does one count the 3-month requirement to apply for naturalization in a US district/state?  Both the USCIS policy manual and the CFR says one count the 3 months from when the applicant has established residence, including any absence from the US. But as was mentioned earlier, if someone established residence and leave the US for the remaining of the 3 months, it seems quite extreme. So where does the USCIS draw the line? At 50% time in the US state, except if some special circumstances (e.g., job requiring to travel all the time or micro-states)?
3. Must the USCIS abide by the Code of Federal Regulations (CFR), or is the CFR just a set of guidelines that aren't legally binding? This question is motivated by the fact that answers to questions 1 and 2 often refer to the CFR and/or the USCIS policy manual, and that the the USCIS policy manual is not legally binding. Because if the CFR is not legally binding, then perhaps we should also read the US code to try to answer the first two questions.

 

 

 

 

Nr 2 is not extreme at all. As long as you have your residence in a place for more than 90 days, it is up to you if you travel internationally or within the US. Your "home" is still in that district/state. Again, the purpose of this 90 days residency is to prevent applicants to move right before filing the N 400 in a jurisdiction known to be faster. Imagine if all of a sudden you have 1 million applicants moving to N Dakota(for ex) just get it over faster.

Edited May 8, 2022 by Buboo

[FranckDernoncourt 1]

38 minutes ago, Buboo said:

Nr 2 is not extreme at all. As long as you have your residence in a place for more than 90 days, it is up to you if you travel internationally or within the US. Your "home" is still in that district/state. Again, the purpose of this 90 days residency is to prevent applicants to move right before filing the N 400 in a jurisdiction known to be faster. Imagine if all of a sudden you have 1 million applicants moving to N Dakota(for ex) just get it over faster.

Thanks, I was editing my previous post to clarify a few things and fix some typos, but I've just learned one cannot edit one's post after 10 minutes  : )

 

Anyway, let's take an example to make sure I understand you correctly. If someone:

• drives into North Dakota today May 8,
• establishes residence in North Dakota by getting a North Dakotan driver's license and/or a lease/mortgage in North Dakota on May 18,
• physically stays in the state until June 18 (= stayed in the state as a resident for 1 month)
• stays outside the US or temporarily goes to different US states for 2 months from June 18 to August 18
• comes back to North Dakota on August 18 (which is exactly 3 months after establishing their residence in North Dakota)

 

do they satisfy the 3-month residence requirement in North Dakota, to submit their N400 on August 18?

 

If not, where does the USCIS draw the line on for how long the applicant may stay outside North Dakota (outside the US or a different US state) during these 3 months?

 

In my case I'll be physically present for 2.5 months in my state of filing, then plan to spend 2 weeks outside the US in early July right before submitting my N400, so I should satisfy the 3-month residence requirement right when I come back to my state of filing after my trip abroad (2.5 months + 2 weeks + a few days of margin = 3 months). But this made me wonder what happened to this above-mentioned fictitious applicant who goes to North Dakota and is physically absent from it for the majority of their first 90 days of residence there.

 

The reason for looking at this more extreme case is to find out if the law or the USCIS has drawn the line more explicitly (that'd be useful in the unlikely event that my 2.5 months + 2 weeks situation trigger some concerns from the officer during my naturalization interview) and if anyone here has some experience on that.

 

 

Edited May 8, 2022 by FranckDernoncourt

[Buboo 2]

54 minutes ago, FranckDernoncourt said:

Thanks, I was editing my previous post to clarify a few things and fix some typos, but I've just learned one cannot edit one's post after 10 minutes  : )

 

Anyway, let's take an example to make sure I understand you correctly. If someone:

• drives into North Dakota today May 8,
• establishes residence in North Dakota by getting a North Dakotan driver's license and/or a lease/mortgage in North Dakota on May 18,
• physically stays in the state until June 18 (= stayed in the state as a resident for 1 month)
• stays outside the US or temporarily goes to different US states for 2 months from June 18 to August 18
• comes back to North Dakota on August 18 (which is exactly 3 months after establishing their residence in North Dakota)

 

do they satisfy the 3-month residence requirement in North Dakota, to submit their N400 on August 18?

 

If not, where does the USCIS draw the line on for how long the applicant may stay outside North Dakota (outside the US or a different US state) during these 3 months?

 

In my case I'll be physically present for 2.5 months in my state of filing, then plan to spend 2 weeks outside the US in early July right before submitting my N400, so I should satisfy the 3-month residence requirement right when I come back to my state of filing after my trip abroad (2.5 months + 2 weeks + a few days of margin = 3 months). But this made me wonder what happened to this above-mentioned fictitious applicant who goes to North Dakota and is physically absent from it for the majority of their first 90 days of residence there.

 

The reason for looking at this more extreme case is to find out if the law or the USCIS has drawn the line more explicitly (that'd be useful in the unlikely event that my 2.5 months + 2 weeks situation trigger some concerns from the officer during my naturalization interview) and if anyone here has some experience on that.

 

 

Based on my interpretation, I think that the person satisfies the residency criteria. The text says clearly that the time spent outside the US is taken in consideration as part of that 90 days requirement. 

 

[Mike E 11,764]

Since the example doesn’t mention AR-11 in would not be surprised by a denial.  
 

If you’ve really changed residency then why wouldn’t you swear to it on a federal document? Makes no sense to me.  

[FranckDernoncourt 1]

2 minutes ago, Mike E said:

Since the example doesn’t mention AR-11 in would not be surprised by a denial.  
 

If you’ve really changed residency then why wouldn’t you swear to it on a federal document? Makes no sense to me.  

Good point, let's assume an AR-11 is filed on the day when the lease begins.

[Ontarkie 15,031]

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