Physical Presence Quesitons

[centrinouk 5]

Dear All,

My best friend is willing to apply for N-400. He has a green card since 2007 and when he was issued the green card he was maintaining his residence by making entry to the states less than six months and he stay for 1 months each time. Since May 2012 he is Physical present in US and never left and in total he has more than 30 months count and his wife became a US Citizen 2 years ago. My friend was never away from the states for over 180 days once. He is usually abroad for his work but he always come before 6 months to the states. He went to the USCIS made an info pass and told them his case and they said if he is away from the states in 1 year over 6 months then his count is away. He is usually away 10 months in 1 year but never once he was away for 6 months at a time.

In the uscis website it states clearly

be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application

• Be physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application

It never stated in one year don't exceed 6 months.

Could you please advise?

[NancyNguyen 1,657]

Being absent for 10 months in a year (no need to be more than 6months in one trip), it is clearly he failed to maintain his permanent residence. Determining his continuity of residence is at USCIS discretion. He will be able to file for Naturalization after 4 years and 1 day from May 2012 (as you stated.)

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

1. Absence of More than Six Months (but Less than One Year)

An absence of more than six months (more than 181 days but less than one year (less than 365 days)) during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship.^[10]

An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence.

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence:^[11]

• The applicant did not terminate his or her employment in the United States or obtain employment while abroad.
  

• The applicant’s immediate family remained in the United States.
  

• The applicant retained full access to his or her United States abode.

Edited July 9, 2014 by NancyNguyen

[DC85 113]

Being absent for 10 months in a year (no need to be more than 6months in one trip), it is clearly he failed to maintain his permanent residence. Determining his continuity of residence is at USCIS discretion. He will be able to file for Naturalization after 4 years and 1 day from May 2012 (as you stated.)

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

1. Absence of More than Six Months (but Less than One Year)

An absence of more than six months (more than 181 days but less than one year (less than 365 days)) during the period for which continuous residence is required is presumed to break the continuity of such residence. This includes any absence that takes place prior to filing the naturalization application or between filing and the applicant’s admission to citizenship.^[10]

An applicant’s intent is not relevant in determining the location of his or her residence. The period of absence from the United States is the defining factor in determining whether the applicant is presumed to have disrupted his or her residence.

An applicant may overcome the presumption of loss of his or her continuity of residence by providing evidence to establish that the applicant did not disrupt his or her residence. The evidence may include, but is not limited to, documentation that during the absence:^[11]

• The applicant did not terminate his or her employment in the United States or obtain employment while abroad.

• The applicant’s immediate family remained in the United States.

• The applicant retained full access to his or her United States abode.

I don't agree with the your post, the OP friend did't leave the country for more than 6 month in a single trip, so the quoted paragraph doesn't apply to him/her.

I think if your friend files on November this year, to be in the safe side, he/she will get it.

Edited July 9, 2014 by myafi1985

[JimmyHou 611]

Living outside of the US for long periods of time while you are a PR will raise questions when you apply for citizenship.

I haven't looked this up on the USCIS website, but here's what I was told by an immigration lawyer:

If you stay outside the US for more than 1 year at a time, then you have broken your continuous residence.

If you stay outside the US for more than 6 months but less than 1 year, then you may have broken your continuous residence and it is up to you to prove to USCIS that you have not.

If you stay outside the US for long periods of time, but never more than 6 months at a time, then you may have broken your continuous residence, but it is up to USCIS to prove that you have.

As you said, the USCIS website doesn't say you can't stay outside the US for more than 6 months in one year, but it does say that you're supposed to be living in the US. Can your friend say that he was living in the US from 2007-2012?

It really depends on the officer you get. It's very easy for him or her to look at the passport and say that your friend clearly wasn't living in the US from 2007 to 2012 (spending 2 months a year in the country isn't living here). If that happens, he'll have to wait 4 years + 1 day from the day he actually moved to the US in 2012. On the other hand, the officer may ignore this because there were no absences of more than 6 months. If you friend has any paperwork showing his connection to the from 2007 to 2012, he should take it to the interview (rental agreements, bills and receipts, etc.).

[NancyNguyen 1,657]

I don't agree with the your post, the OP friend did't leave the country for more than 6 month in a single trip, so the quoted paragraph doesn't apply to him/her.

I think if your friend files on November this year, to be in the safe side, he/she will get it.

Did you really read the document from USCIS? I didn't make those. You state the US is your residence and you live 10 months of a year in another country? Does it ever make senses to anyone?

F.Documentation and Evidence

Mere possession of a Permanent Resident Card (PRC) for the period of time required for continuous residence does not in itself establish the applicant’s continuous residence for naturalization purposes. The applicant must demonstrate actual maintenance of his or her principal dwelling place, without regard to intent, in the United States through testimony and documentation.

For example, a “commuter alien” may have held and used a PRC^[29] for seven years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period.

USCIS will review all of the relevant records to determine whether the applicant has met the required period of continuous residence. The applicant's testimony will also be considered to determine whether the applicant met the required period of continuous residence.

Edited July 9, 2014 by NancyNguyen

[Dave&Roza 748]

Dear All,

My best friend is willing to apply for N-400. He has a green card since 2007 and when he was issued the green card he was maintaining his residence by making entry to the states less than six months and he stay for 1 months each time. Since May 2012 he is Physical present in US and never left and in total he has more than 30 months count and his wife became a US Citizen 2 years ago. My friend was never away from the states for over 180 days once. He is usually abroad for his work but he always come before 6 months to the states. He went to the USCIS made an info pass and told them his case and they said if he is away from the states in 1 year over 6 months then his count is away. He is usually away 10 months in 1 year but never once he was away for 6 months at a time.

In the uscis website it states clearly

be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application Unless married to a USC for 3 years, the 5 years as a LPR applies.

• Be physically present in the United States for at least 18 months out of the 3 years immediately preceding the date of filing the application This is for those going for naturalization based on the marriage to a USC.

It never stated in one year don't exceed 6 months.

Could you please advise?

No but there is another place where it does state that trips outside the US MAY interrupt the Continuous Residence requirement. There is also the physical presence requirement. Both must be met. I should also point out that your friend, due to his being outside the US so much, MAY have to prove to the USCIS that he did not abandon his LPR status during the period he was outside the US. I hope he filed a US tax return during that period. If not, I would not go for naturalization anytime soon as that is one of those requirements for maintaining LPR status. If your friend failed to maintain his LPR status, and if he goes for naturalization, it might be discovered and he could possibly loose his GC.

Dave

[DC85 113]

Did you really read the document from USCIS? I didn't make those. You state the US is your residence and you live 10 months of a year in another country? Does it ever make senses to anyone?

F.Documentation and Evidence

Mere possession of a Permanent Resident Card (PRC) for the period of time required for continuous residence does not in itself establish the applicant’s continuous residence for naturalization purposes. The applicant must demonstrate actual maintenance of his or her principal dwelling place, without regard to intent, in the United States through testimony and documentation.

For example, a “commuter alien” may have held and used a PRC^[29] for seven years, but would not be eligible for naturalization until he or she had actually taken up permanent residence in the United States and maintained such residence for the required statutory period.

USCIS will review all of the relevant records to determine whether the applicant has met the required period of continuous residence. The applicant's testimony will also be considered to determine whether the applicant met the required period of continuous residence.

I read the whole document, Again. The OP mentioned that his friend didn't exceed the 6 months in his trips, I am not getting why you mention things that doesn't apply on this case !!!!! If you didn't have trips for more than 6 months you don't need to proof that you didn't break you contentious residence

all the issues arise when the applicant leaves more than 6 months

it's simple. They look if you have any trips for more than 6 months, if so then they will question that. if not then they will look if you spend 30 months on the states before the filing. if both condition applies then the applicant meets both residence requirement

Edited July 9, 2014 by myafi1985

[JimmyHou 611]

I read the whole document, Again. The OP mentioned that his friend didn't exceed the 6 months in his trips, I am not getting why you mention things that doesn't apply on this case !!!!! If you didn't have trips for more than 6 months you don't need to proof that you didn't break you contentious residence

all the issues arise when the applicant leaves more than 6 months

it's simple. They look if you have any trips for more than 6 months, if so then they will question that. if not then they will look if you spend 30 months on the states before the filing. if both condition applies then the applicant meets both residence requirement

You can have only absences of less than six months at a time and you can have spent 30 months in the US, and USCIS can still decide that you have not maintained continuous residence. If you spent two years outside the US (just visiting for one day every 6 months) and then you came back to the US and didn't leave for 3 years, your application may be denied because you weren't really living in the US for the first two years.

From the USCIS policy manual:

"C. Breaks in Continuous Residence

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.[9]

Absences of more than 6 months but less than one year; and

Absences of one year or more.

In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence."

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

[DC85 113]

You can have only absences of less than six months at a time and you can have spent 30 months in the US, and USCIS can still decide that you have not maintained continuous residence. If you spent two years outside the US (just visiting for one day every 6 months) and then you came back to the US and didn't leave for 3 years, your application may be denied because you weren't really living in the US for the first two years.

From the USCIS policy manual:

"C. Breaks in Continuous Residence

An applicant for naturalization has the burden of establishing that he or she has complied with the continuous residence requirement, if applicable. There are two types of absences from the United States that are automatically presumed to break the continuity of residence for purposes of naturalization.[9]

Absences of more than 6 months but less than one year; and

Absences of one year or more.

In addition, absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence."

http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter3.html

I see now what you mean. I have a friend who was in a similar situation and he was approved, So I think it depends about the officer

Edited July 9, 2014 by myafi1985

[JimmyHou 611]

I see now what you mean. I have a friend who was in a similar situation and he was approved, So I think it depends about the officer

I agree... for absences of less than six months, it'll depend on the officer.

The rules are much clearer for absences of 6 months to a year or absences longer than 1 year.

However, even if the application is denied, with absences of less than 6 months, the applicant shouldn't be at risk of being accused of having abandoned his green card, so he can apply 4 years + 1 day from when he started living in the US in 2012... so some time in 2016.

[Mariam&Smith 45]

I read the whole document, Again. The OP mentioned that his friend didn't exceed the 6 months in his trips, I am not getting why you mention things that doesn't apply on this case !!!!! If you didn't have trips for more than 6 months you don't need to proof that you didn't break you contentious residence

all the issues arise when the applicant leaves more than 6 months

it's simple. They look if you have any trips for more than 6 months, if so then they will question that. if not then they will look if you spend 30 months on the states before the filing. if both condition applies then the applicant meets both residence requirement

As JimmyHou and NancyNguyen said, he will have a hard time to prove his continuous residence, it doesn't need him to be out of the States 6 months in one trip. The fact is that he was out of the country 10 months out of a years, so you call that continuous residence?

[centrinouk 5]

Guys thanks for all your posts. Yes all what was said doesn't apply. My friend never was once more than six months away from the states and was never 1 year away. what i said about the 10 months away is he was coming stamped his passport then stayed 1 month then before 6 months he came again in the same year and stayed for 1 month. My friend can prove that all his children and wife were living there at the time not only that but also he had a car , driver's license , lease , rental and everything. The first 2 years he never found any job with his skillset and he was working abroad at atime but 2-3 years later he decided to learn truck driving and become a truck driver and have a license thats good enough to convience the immigration office that he is permanently willing to stay in the states.

Thanks guys for all your concerns