Physically Present Rule

[Angela256z 30]

Hi all, 

 

I am trying to see if my friends mom is eligible to file her N-400.  Below are her dates in the US in the last five years. 

Here are the rules:

An applicant for naturalization is generally required to have been physically present in the United States for at least half the time for which his or her continuous residence is required. Applicants for naturalization under INA 316(a) are required to demonstrate physical presence in the United States for at least 30 months (at least 913 days) before filing the application. ^[1] 

 

However, when taking the eligibility test it said were you gone for more than six months at a time.  Which she was, but was in the US at least 913 days.  So I am a little confused.  Here is her last five years in the states. 

 

9/1/17 – 11/2/17 – 62 Days

4/12/18 - 5/30/18 – 48 Days

10/18/18 – 2/21/19 – 126 days

8/6/19 – 10/2/19 -  57 days        

3/10/2020 – 7/7/21 – 484 days

11/16/2021 – 7/19/2022 – 245 days (she's still here and no plans on leaving the country)

Total = 1022 days in the past five years. 

 

[Angela256z 30]

Actually looks like she only stayed just over 160 days on that longest trip.  So from what I can see she should qualify based on the last five years.  That is as far back as they look correct?

[beloved_dingo 1,979]

21 minutes ago, Angela256z said:

Hi all, 

 

I am trying to see if my friends mom is eligible to file her N-400.  Below are her dates in the US in the last five years. 

Here are the rules:

An applicant for naturalization is generally required to have been physically present in the United States for at least half the time for which his or her continuous residence is required. Applicants for naturalization under INA 316(a) are required to demonstrate physical presence in the United States for at least 30 months (at least 913 days) before filing the application. ^[1] 

 

However, when taking the eligibility test it said were you gone for more than six months at a time.  Which she was, but was in the US at least 913 days.  So I am a little confused.  Here is her last five years in the states. 

 

9/1/17 – 11/2/17 – 62 Days

4/12/18 - 5/30/18 – 48 Days

10/18/18 – 2/21/19 – 126 days

8/6/19 – 10/2/19 -  57 days        

3/10/2020 – 7/7/21 – 484 days

11/16/2021 – 7/19/2022 – 245 days (she's still here and no plans on leaving the country)

Total = 1022 days in the past five years. 

 

She must show continuous residence AND physical presence. Her issue here will be continuous residence. Absences of more than 6 months and less than 1 year can be overcome by maintaining U.S. employment, keeping a residence, etc. but considering the very small amount of time she spent in the U.S. in 2017, 2018 and 2019, I don't know if she will overcome the issue (unless I am misinterpreting the dates here).

Edited July 19, 2022 by beloved_dingo

[Angela256z 30]

4 minutes ago, beloved_dingo said:

She must show continuous residence AND physical presence. Her issue here will be continuous residence. Absences of more than 6 months and less than 1 year can be overcome by maintaining U.S. employment, keeping a residence, etc. but considering the very small amount of time she spent in the U.S. in 2017, 2018 and 2019, I don't know if she will overcome the issue (unless I am misinterpreting the dates here).

She receives workers comp from an injury sustained at work many years ago and is considered disabled.  She has always maintained a residence with her daughter and her family.  That is where she lives.  Her SIL is military and was in HI from 2016 - 2018 then they moved to UT from 2018 - 2020 and then have been in AZ since 2020.  She has always lived with them and has a local drivers license in each state with their address.  Would that not count?

 

[beloved_dingo 1,979]

18 minutes ago, Angela256z said:

Actually looks like she only stayed just over 160 days on that longest trip.  So from what I can see she should qualify based on the last five years.  That is as far back as they look correct?

Assuming my counting is correct, I get the following:

 

11/2/17 - 4/12/18 = 161 days out of U.S.

5/30/18 - 10/18/18 = 141 days out of U.S. 

2/21/19 - 8/6/19 = 166 days out of U.S. 

10/2/19 - 3/10/20 = 160 days out of U.S. 

 

So these are less than 6 months, which is good. But I am not sure about the very small amount of time she spent in the U.S. between these trips. Someone more knowledgeable needs to chime in. However, this is what USCIS has to say:

 

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. Generally, there are two ways outlined in the statute in which the continuity of residence can be broken:[9]
 

• The applicant is absent from the United States for more than 6 months but less than 1 year; or
• The applicant is absent from the United States for 1 year or more.
   

An officer may also review whether an applicant with multiple absences of less than 6 months each will be able to satisfy the continuous residence requirement. In some of these cases, an applicant may not be able to establish that his or her principal actual dwelling place is in the United States or establish residence within the United States for the statutorily required period of time.[10]
 

An LPR’s lengthy or frequent absences from the U.S. can also result in a denial of naturalization due to abandonment of permanent residence.

 

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

 

Edited July 19, 2022 by beloved_dingo

[huy_le 32]

One thing I need to make sure you understand is citizenship eligibility is the combination of two things: a) being physically present in the US for at least 913 days in the last 5 years AND b) not being outside of the US for more than 180 days in one trip. The second is very important, 180 days may not always be the same as 6 months, depending on the months (think February).

 

I am not counting the days again and just going with the visual check and the days you provided. It does seem she should be eligible. Now, a difficult IO may challenge the intention by asking about the many trips she took, but that is not the law so do prepare an explanation but have no fear. In fact, my wife and I took many trips during our 3 years (14+ trips), but it was never an issue.

 

Hope it helps!

Edited July 19, 2022 by huy_le

[Timona 4,207]

Calling @Mike E. He's an expert at this 

[arken 4,197]

2 hours ago, Angela256z said:

9/1/17 – 11/2/17 – 62 Days

4/12/18 - 5/30/18 – 48 Days

10/18/18 – 2/21/19 – 126 days

8/6/19 – 10/2/19 -  57 days        

3/10/2020 – 7/7/21 – 484 days

11/16/2021 – 7/19/2022 – 245 days (she's still here and no plans on leaving the country)

Total = 1022 days in the past five years. 

 

Physical Presence - So far all Good

 

1 hour ago, beloved_dingo said:

11/2/17 - 4/12/18 = 161 days out of U.S.

5/30/18 - 10/18/18 = 141 days out of U.S. 

2/21/19 - 8/6/19 = 166 days out of U.S. 

10/2/19 - 3/10/20 = 160 days out of U.S. 

Continuous Residence: Not so good

An IO could see that as gaming the system. Not staying for more than 6 months at a time (👍) but entering US to stay for 1-2months just to go back again for another ~ 5 months (👎).

 

Is she eligible to file N400? Yes

Will she be asked to provide evidences of continuous residence for those absent periods? Very likely

IO is satisfied with the evidence - Pass

IO is not satisfied with the evidence- Fail

 

If she has good collection of evidences (not just 1 evidence) of continuous residence for those absent period (utility bills/lease/her spouse stayed in the US/and others...)- she could pass

If no such evidences don't bother to file. 
 

File after staying for more than 4 years and 6 months from 3/10/2020 without making such trips.

 

 

 

Edited July 19, 2022 by arken

[Angela256z 30]

15 hours ago, arken said:

Continuous Residence: Not so good

An IO could see that as gaming the system. Not staying for more than 6 months at a time (👍) but entering US to stay for 1-2months just to go back again for another ~ 5 months (👎).

 

If she has good collection of evidences (not just 1 evidence) of continuous residence for those absent period (utility bills/lease/her spouse stayed in the US/and others...)- she could pass

 

That is the problem I think.  She was going back to spend time with her spouse who was deported back in 2004.  I would need to ask her daughter on what evidence she has.  I know she has bank, credit cards, cell bill, but she has lived with her daughter and SIL so the house and everything else is in their name.  

[carmel34 3,638]

1 hour ago, Angela256z said:

She was going back to spend time with her spouse who was deported back in 2004.  I would need to ask her daughter on what evidence she has.  I know she has bank, credit cards, cell bill, but she has lived with her daughter and SIL so the house and everything else is in their name.  

This will be considered as key information by the officer.  Living with family, no lease or utilities in her name, going abroad for long periods of time to live with her spouse, then returning to the US for 1-2 months before the next extended trip may not fly, but she can try.  To be safe, she could simply wait until 2024.  She should also make sure she has filed income taxes with the IRS every year, and consider a written lease with her family members.  Driver's license and credit card may not be enough to show continuous residence. 

[Angela256z 30]

2 minutes ago, carmel34 said:

This will be considered as key information by the officer.  Living with family, no lease or utilities in her name, going abroad for long periods of time to live with her spouse, then returning to the US for 1-2 months before the next extended trip may not fly, but she can try.  To be safe, she could simply wait until 2024.  She should also make sure she has filed income taxes with the IRS every year, and consider a written lease with her family members.  Driver's license and credit card may not be enough to show continuous residence. 

Great.  Thank you!  We checked a couple of years ago and she doesn't need to file taxes, but we can have her file blank ones as they suggested a couple of years ago for her medical insurance.  I will let her daughter know that it may be best to wait a couple of more years.  

[Mike E 11,740]

18 hours ago, Timona said:

Calling @Mike E. He's an expert at this 

It’s a marginal case but I’ve seen such cases approved.