N400 Filing-274 days outside US in 5 years

[siddharth1800 1]

Should I file the N400 application or is worth it to wait till next year for my mom? The calculator shows she has 274 days outside US in the past 5 years

[Going through 5,671]

For the 5-year eligibility rule, your mother would have had to physically be in the US for a minimum of 913 days over the past 5 years.

 

Exit and entry dates do not count (ie. the actual date of flying/driving in and out of the US).  So you may want to redo your calculations if you want the numbers to go down.

 

A. Physical Presence Requirement

 

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] 

 

Physical presence refers to the number of days the applicant must physically be present in the United States during the statutory period up to the date of filing for naturalization. The continuous residence ^[2] and physical presence requirements are interrelated but each must be satisfied for naturalization. 

 

USCIS will count the day that an applicant departs from the United States and the day he or she returns as days of physical presence within the United States for naturalization purposes. ^[3] 

 

^{https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter4.html}

Edited August 23, 2018 by Going through

[geowrian 22,337]

What was the longest single trip abroad? What about multiple trips in a 12 month period?

I'm just asking with regards to the continuous residence requirement.

[siddharth1800 1]

The longest trips were - The cycle for 5 years started 22Aug2013 I guess with the total of 694 total days  outside the U.S. during the last 5 years.

 

India

05/18/2015 - 03/18/2016 (304 days)

 Edit

 Delete

India

08/22/2013 - 05/13/2014 (262 days)

 Edit

 Delete

[geowrian 22,337]

Okay....that's a lot more than the initial post indicated.

That still meets the physical presence requirement based on a quick calculation. However, she very likely broke continuous residence on both trips. Continuous residence would resume upon her arrival back on 3/18/2016, so 5 years from that she would become eligible for naturalization. There is a 4 years + 1 day rule as well, but I believe this only applies after being denied naturalization due to the break (not sure on this, sorry).

 

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

Edited August 23, 2018 by geowrian

[Going through 5,671]

37 minutes ago, siddharth1800 said:

The longest trips were - The cycle for 5 years started 22Aug2013 I guess with the total of 694 total days  outside the U.S. during the last 5 years.

Hmmm---in your OP, you'd said she'd been out of the US for a total of 274 days.

 

Much worse now, travel wise, with the new number you just presented---albeit only on the continuous presence part.

Suggest you keep her put in the country for now, and apply early next year, at the least.

 

31 minutes ago, geowrian said:

There is a 4 years + 1 day rule as well, but I believe this only applies after being denied naturalization due to the break (not sure on this, sorry).

Yes.

Edited August 23, 2018 by Going through

[geowrian 22,337]

24 minutes ago, Going through said:

Suggest you keep her put in the country for now, and apply early next year, at the least.

Not just at the least, but it appears that 2021 would be the soonest she would be eligible (unless she is married to a USC for 3+ years, in which case the 3 year rule could apply and next year could work).

[Prawninator 138]

Wait, so let's say I took a vacation in January 2016 for a little less than 3 weeks, I'm not eligible to apply for Naturalization at this time? (sorry to hijack, I'm seeing some conflicting answers, so I was curious)

[SleepyPanda 10]

18 minutes ago, love_my_wife said:

 

The moment she is out of the country for more than 6 months (183 days I guess), it is presumed that she has abandoned her continuous residence unless she can prove that she has ties to the country like ongoing rent/insurance/mortgage or other bills payments for the time she was not in US. Also, if the absence outside the country of more than 6 months are multiple, then there is no way to get that out of the way other than to wait for 5 years after coming inside the country since the last visit of 6 months or more. From your data, 2021 will be the earliest that she can apply if she has no more visits outside the US of more than 6 months!

What if you applied and received a I131 Travel document during that travel along with filing taxes and other payments in the US?

Would that aid in proving that you did not abandon your status?

Edited August 23, 2018 by SleepyPanda

[geowrian 22,337]

33 minutes ago, Prawninator said:

Wait, so let's say I took a vacation in January 2016 for a little less than 3 weeks, I'm not eligible to apply for Naturalization at this time? (sorry to hijack, I'm seeing some conflicting answers, so I was curious)

No, that's fine. A trip abroad of 3 weeks won't break continuous residence or violate the physical presence requirements. Trips in excess of 6 months (all at once or multiple in a year) may do so. The IO makes the final call, but the odds are generally stacked against you as there is a legal presumption of having broken continuous residence.

[geowrian 22,337]

25 minutes ago, SleepyPanda said:

What if you applied and received a I131 Travel document during that travel along with filing taxes and other payments in the US?

Would that aid in proving that you did not abandon your status?

A re-entry permit helps showing that you did not abandon your claim to permanent residence by being abroad, but they have no impact on the continuous residence requirement.

The issue here is not abandonment of status. She was admitted back into the US so therefore they did not believe she abandoned her permanent residence. But that is a different requirement than continuous residence. The re-entry permit would have no impact on the latter.

 

Edit: Filing taxes and other activities can help show that continuous residence was not broken. But as noted, with 6+ month travel (and almost a full year in the OP's mother's case), it's a very uphill battle to convince an IO of this.

Edited August 23, 2018 by geowrian

[SleepyPanda 10]

2 hours ago, love_my_wife said:

 

 

I was not aware of this continuous residence rule earlier and stayed outside of US for about 188 days, just a few days above the 6 months threshold and had to wait 3 extra years to file N400 as my clock got reset! I had consulted a lawyer about this and she said she wouldn't even waste her time taking my case for N400 application! The re-entry permit is there so that one doesn't lose their greencard for absences of over 1 year and has no bearing on continuous residence!

wow.. that sucks...did you do anything to prove continuous residence?

[CheeseMonstah 87]

I've always wondered how people can stay >180 days out of the country if they truly are residents. I struggle to take a 2 week break to travel, to me the concept of claiming to be a resident and staying 300 days out of the country is quite foreign...

[Amadia 711]

Getting back to the OP's question, it seems that your mom does not deem USA as her residence if she is out of the country for that length of time on more than one occasion. Does she have some type of business or family-related matter that requires her to be outside the USA for so long?

[WeGuyGal 1,052]

40 minutes ago, Amadia said:

Getting back to the OP's question, it seems that your mom does not deem USA as her residence if she is out of the country for that length of time on more than one occasion. Does she have some type of business or family-related matter that requires her to be outside the USA for so long?

I've seen some instances of Indian nationals playing the numbers game and pushing the envelope. Many have 5.5 month visits to the US on B2 visas, or lengthy ~179-day (or longer) trips to India as GC holders. Akin to using the green card as a sort of super tourist visa.