Looking for advice and help to figure out the physical presence requirement.

[Mora3737! 1]

Hi!

 

I am new to this and would truly appreciate any help and advise on my situation. I am thinking is it even worth for me to try to apply for citizenship or not. The USCIS website is allowing me to submit but also prompts me with a warning saying that I may not be eligible after all.

 

I am a Green Card holder (since 6,5 years now). I lived in the USA for the first 3+ years continuously. However, the past 5 years counted together is a different story as I had some disruptions:

In 2019 I returned to my home country and ended up staying for 9 months due to health issues. Then I returned to the USA in January 2020 just before the Pandemic hit and ended up leaving March 18th  (I left due to the Pandemic but also due to still lingering health issues). Due to my health issues I ended up staying in my home country for almost an entire year (about 11,5 months). I returned to the USA in the beginning of March 2021. I stayed for 9 months and then went back home where I was for a day under 6 months. I returned to the USA on the 31st of May 2022 and I'm still here. 

 

As I'm filling in the form it states that I spent 903 days outside the U.S. during the last 5 years. Which is still in the range, however, I have those long stays away that both exceed 6 months and in my understanding break physical presence rules.

Also when I was away I did not keep a lease/apartment in the USA, I did not have any employer in the USA and I have no family in the USA. 

 

Does anyone know if the USCIS is being more flexible when looking at the year 2020 due to the Pandemic? Also, I have doctors notes stating I was unable to travel for both of those longer stays back home- but I don't see anywhere that that would count. I am wondering if they let you explain why you were away or will they just deny the application without allowing to explain?

 

I have always during these years done my tax returns as a full time New York State Resident even when I was away. Those times I was back home I worked a bit (I was mostly claiming unemployment there because I was sick and I only worked a couple of months part time before returning to the USA). This time when I was back for just under 6 months I worked full time there. 

 

Another tricky thing is that when I was in the USA in 2021- I was first 3 months in NYC and then 6 months in Chicago, where I worked. I never signed up for residency there tho ( I did my 2021 taxes as a full time NYC resident and only temporary Illinois resident). In my eyes I have never given up my NY residency and should have been considered one all this time.. But as I flew home from Chicago and then was there for a day less than 6 months- I don't know if I am considered to have met the three month requirement for living in the same district as I am filing from? 

 

Sorry if my questions are stupid- I am quite overwhelmed with all the info and rules. I am very grateful for any help!!

 

My timeline for the past 5 years: 

June 22nd  2017: I lived in NYC (went back home for two holidays: left at the end of June for a month and then again for a month at the end of December)

Year 2018: Lived in NYC and went home for a holiday for the month of August.

Year 2019: Went back home on 30th March and ended up staying for the rest of the year (due to health issues - I have a doctors note from my home country stating I was unable to travel)

Year 2020: Returned to NYC on the 6th January. Ended up leaving on the 18th March due to Pandemic and lingering health issues (again, I have a doctors note). Stayed in my home country for the rest of the year.

Year 2021: Returned to NYC 5th March. Stayed in NYC until June 1st and then moved to Chicago - stayed there until December 1st when I flew back home for the rest of the year.

 Year 2021: Was back home  (working) until returning to NYC on 31st May and I'm still here.

 

 

  

 

 

Edited June 22, 2022 by Mora3737!

[JeanneAdil 6,539]

u ask for opinion and in 2020 our government made great strides to bring USC and LPR back to the US

so,  no,  they don't have to be flexible for staying outside the US in 2020 

especially when we returned the 17th of March when the paris airport and most others shut down and u chose to travel the day after

 

 

out of the country till May 31st means u do not meet the 3 month rule for filing in the jurisdiction that will handle your case /  u need to be there till end of August 

 

and u have broken the continuous residency so its up to the officer at an interview to make a decision

[Lil bear 4,248]

The fact that you were employed and also utilized your home country’s unemployment while out of the US will be major issues which may lead USCIS to consider that you abandoned your LPR status.   I would be starting your 5 yr period from when you last entered the Us and taking great care to comply with all the requirements for applying for USC during these next years 

[Family 4,025]

I will assume your last entry is a typo and you meant that you returned to US in May 31, 2022 and are living in NYC. You cannot afford any typos , nor a mistake when each day counts (903 out) and you cannot count or round up in months…need to tally up days. 

Your chances of success are cloudy with a chance of rain. They depend on you being able to show what you maintained here, in the US that counts as “ home”, to put it simply. And you cannot afford referencing your periods outside as being “ back home “. 

[Boiler 45,657]

Looks like you got lucky being let in, naturalise is a another thing.

 

Needd good legal advice, not sure you would want to tell them this story 

[Pinkrlion 2,724]

37 minutes ago, Family said:

I will assume your last entry is a typo and you meant that you returned to US in May 31, 2022 and are living in NYC. You cannot afford any typos , nor a mistake when each day counts (903 out) and you cannot count or round up in months…need to tally up days. 

Your chances of success are cloudy with a chance of rain. They depend on you being able to show what you maintained here, in the US that counts as “ home”, to put it simply. And you cannot afford referencing your periods outside as being “ back home “. 

He already stated that did not maintain residency in the US while in home country.  So has no proof of lease, utility bills, etc...

[Lil bear 4,248]

3 issues

1. at present not meet residency requirements in jurisdiction of filing for N400 ..  least of the 3 problems but .. 

2. Has broken continual residency requirements multiple times. May be assessed as abandoning LPR status 

3. Fails physical presence requirements over the last 5 years  

 

 

[Family 4,025]

15 minutes ago, Lil bear said:

3 issues

1. at present not meet residency requirements in jurisdiction of filing for N400 ..  least of the 3 problems but .. 

2. Has broken continual residency requirements multiple times. May be assessed as abandoning LPR status 

3. Fails physical presence requirements over the last 5 years  

 

#1 not really a problem as residency for filing is presumed / assigned as the state he lived in before the last trip out..it’s in the regs. 

#2 depends on what he CAN  show he maintained as “ home” in US . ( am aware of what he does not have). They cannot push abandonment ( doctors notes for health…etc.) BUT work  abroad requires very very laser focused argument to overcome as a break. 

# 3. this is all about a precise count of days, his burden to be correct.

 

I agree that it is challenging and doubt he could DIY it on a prayer of COVID-19 discretion and best to wait 

[Dongbei 22]

I'm honestly kinda surprised that the CBP officer let you back in. Did they write "advise of residency requirements" or anything like that on your passport stamp at any point?

 

I think you should get an immigration lawyer before filing.

[Mora3737! 1]

2 hours ago, Dongbei said:

I'm honestly kinda surprised that the CBP officer let you back in. Did they write "advise of residency requirements" or anything like that on your passport stamp at any point?

 

I think you should get an immigration lawyer before filing.

Yes, I was very surprised also when both times after being away they asked me zero questions at the border and also they have not written anything in my passport or commented my times away in any  way.. 

[African Zealot 1,455]

You shouldn’t even be dreaming of naturalization. That would be a case of Oliver asking for more. Instead your strategy should be to wait years until your extended period of being away from the USA has faded significantly into the background. I’m talking minimum 4 years. 
 

Of course you could still apply and get away with it just like you did with the CBP Officer but your chances are slim.

[Cathi 5,769]

12 minutes ago, African Zealot said:

but your chances are slim.

Slim to none.